Legitimizing the “Constitutional” Right?

“The federal lawsuits against last year’s health care overhaul were greeted with eye-rolling and snickers from many conventional legal scholars,” begins Politico‘s coverage of the right’s resurgent constitutional rhetoric. “Nobody’s laughing now.”

This much is true, but unremarkable. Comedy always gives way to tragedy when the joke goes on for too long, and that’s all that’s happening here. Tea party constitutionalism has staying power, sure. But let’s not mistake it for substance.

Politico‘s piece tries to lend tea amateur party constitutionalists just that legitimacy, by linking them to a separate, vastly older, vastly more serious conservative movement: the “federalist revolution” (pdf) that produced and continues to influence serious thinkers, like Justice Antonin Scalia. This is the group of lawyers, jurists, and academics that built a sort of counter-insurgency against the more consequential triumphs (excesses?) of the Warren Court, formed the Federalist Society, pioneered originalism, and through Chief Justice William Rehnquist, among other notable advances, revitalized “states’ rights” in a series of decisions preventing the Commerce Clause power from shading into the state’s police power. Reasonable people can (and do) disagree on several of the products of the this group’s activity, but none dispute its intellectual power, or the importance of the scholarship its battles have generated.

The battles of the “federalist revolution” were and continue to be fought on the pages of the Yale Law Journal and the U.S. Reporter, and there’s a world of difference between the lively back and forth between Justices Souter and Scalia in, say, Seminole Tribe of Florida, and the Glenn Beck-inspired barratry of Tom Cuccinelli.  The former is backed by extensive scholarship, a coherent constitutional vision, and aimed at re-inventing limits that had lain dormant for some time. The latter is a publicity stunt premised on a radical, new theory of the Constitution, one in which the Tenth Amendment imposes substantive limits rejected by every court that’s ever considered it. Ever. Nor have tea party constitutionalists tried to make anything but a rhetorical case for their movement. The real constitutionalist right is a phenomenon of the mind; while tea party constitutionalism is a phenomenon of the press.

True, tea party constitutionalists have tried to lean on, and benefit from, the respectability of their predecessors. Michele Bachmann’s “class” on constitutional law, headlined by Justice Scalia, is one such example.  But this is rather like Yo Yo Ma teaching a group of fifth graders how to play the recorder. Sure, their goals are the same, loosely, but the pupils show none of the mastership of their teacher, and few ever will. Unless or until that changes, tea party constitutionalism will be a press strategy. Nothing more. Let’s not pretend otherwise.

Update: the substance of this post does not change with Judge Vinson’s ruling on the Affordable Care Act. Rather, he brushed aside the scurrilous parts of plaintiffs’ case (the “Tenth Amendment” junk) and looked seriously at the Commerce Clause argument. Of course, he got it wrong, but still…



  1. Barratry! Great addition to my vocabulary.

  2. That Politico piece didn’t seem to quote anybody except Volokh Conspiracy bloggers.

  3. From the tidbits I read on the ruling it appears that the judge actually ruled against the tenth amendment stuff:

    I must reluctantly conclude that Congress exceeded the bounds of its authority in passing the Act with the individual mandate. That is not to say, of course, that Congress is without power to address the problems and inequities in our health care system. The health care market is more than one sixth of the national economy, and without doubt Congress has the power to reform and
    regulate this market. That has not been disputed in this case. The principal dispute has been about how Congress chose to exercise that power here.

  4. Ah he did. But as this professor points out, he muddies the waters by dragging Tenther concerns back into the debate, and where they don’t belong. It’s things like this that explain why we’ll win at the Supreme Court.

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