The Revisionaries

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POLITICS SEPTEMBER 2, 2010

The Revisionaries

It seemed unthinkable that Vaughn Ward wouldn’t, someday, be a U.S. congressman. The decorated Iraq war vet had been handpicked by national Republicans to run against endangered Democrat Walt Minnick for Idaho’s first congressional district. Although he was somewhat gaffe-prone (he had an unfortunate tendency to plagiarize campaign speeches from sources like Barack Obama, for instance), Ward had the boyish good looks, the résumé, and—best of all, for one of the reddest states in the country—Sarah Palin’s blessing. All he had to do was win a GOP primary against Raul Labrador, a relatively young state legislator. What could go wrong?

But there was one thing Ward didn’t see coming—the Seventeenth Amendment. In late April, both Ward and Labrador went on Idaho public television for a discussion of the race. On the show, a local college professor asked the candidates if they were in favor of repealing the amendment, which allows U.S. senators to be elected directly, rather than appointed by state legislatures. Labrador insisted that yes, he did. Ward seemed slightly taken aback—after all, the question doesn’t come up often—but quickly concurred, and even came up with a rationale for scrapping the amendment: “I think that that’s been part of the problem of eroding away states’ rights, where that body, the Senate, is no longer beholden and tied to the state.” For the next two weeks, Idaho’s editorial pages mocked Ward for wanting to take away direct elections, until the candidate finally reversed himself, insisting he was only talking about term limits. Yet that brought up a new problem: Idaho’s largest Tea Party group savaged Ward for his spinelessness and backed Labrador, who went on to win the GOP primary.

It seemed unthinkable that Vaughn Ward wouldn’t, someday, be a U.S. congressman. The decorated Iraq war vet had been handpicked by national Republicans to run against endangered Democrat Walt Minnick for Idaho’s first congressional district. Although he was somewhat gaffe-prone (he had an unfortunate tendency to plagiarize campaign speeches from sources like Barack Obama, for instance), Ward had the boyish good looks, the résumé, and—best of all, for one of the reddest states in the country—Sarah Palin’s blessing. All he had to do was win a GOP primary against Raul Labrador, a relatively young state legislator. What could go wrong?

But there was one thing Ward didn’t see coming—the Seventeenth Amendment. In late April, both Ward and Labrador went on Idaho public television for a discussion of the race. On the show, a local college professor asked the candidates if they were in favor of repealing the amendment, which allows U.S. senators to be elected directly, rather than appointed by state legislatures. Labrador insisted that yes, he did. Ward seemed slightly taken aback—after all, the question doesn’t come up often—but quickly concurred, and even came up with a rationale for scrapping the amendment: “I think that that’s been part of the problem of eroding away states’ rights, where that body, the Senate, is no longer beholden and tied to the state.” For the next two weeks, Idaho’s editorial pages mocked Ward for wanting to take away direct elections, until the candidate finally reversed himself, insisting he was only talking about term limits. Yet that brought up a new problem: Idaho’s largest Tea Party group savaged Ward for his spinelessness and backed Labrador, who went on to win the GOP primary.

Editorial writers may have found the furor over the Seventeenth Amendment ridiculous, but Tea Partiers took it very seriously. “It was definitely a major factor” in backing Labrador, says Brendan Smythe, president of Tea Party Boise. “It’s one of our top issues.” Ordinary citizens, the Tea Partiers had decided, lack the ability to keep tabs on dissembling senators. “We have to feed our children, go to soccer games—we don’t have time to keep an eye on those guys,” explains Smythe. “The ones that can really hold them accountable are the ones who know the games they’re playing”—that is, other politicians. In the Progressive era, reformers had come to the opposite conclusion: When senators owed their jobs to other politicians, the result was less transparency and more corruption. In 1899, copper magnate William Clark had famously purchased himself a Montana Senate seat by handing out monogrammed envelopes containing $10,000 in cash. But Tea Partiers took a darker view of those Progressive reformers. “[The Seventeenth Amendment] didn’t get adopted until 1913, along with the Sixteenth Amendment, the income tax,” says Smythe. “And you also had the institution of the Federal Reserve. So those three acts combined—that was the start of the federal power grab.”

A crusade against direct Senate elections may seem like an awfully strange cause, especially for self-styled populists. And yet, across the country, conservatives are turning to this and similarly idiosyncratic readings of the Constitution in an attempt to cure what ails the country. In fact, if you asked most Tea Party adherents—not to mention its theorists—to define the ideology of their movement, they would likely describe their devotion to the Constitution, a document they say successive generations of politicians have trashed in the country’s slide toward socialism. Many Tea Partiers view the Constitution in much the same way that fundamentalists regard the Bible, a sacred text whose language is the source of Truth. Groups like Let Freedom Ring are holding public readings of the Constitution around the country. And mainstream conservatives have been nudged to embrace the cause. In February, a number of the movement’s luminaries, including Ed Meese and Grover Norquist, penned a statement calling for a “constitutional conservatism” that could unite the right.

But there’s something curious about this new constitutional conservatism. At the same time that the Tea Party claims to defend the document against the onslaught of liberals (and their many Republican accomplices), it has grand plans for its renovation. If you listen to this year’s crop of congressional candidates, they are full of ideas for adding and subtracting amendments. Repealing the direct election of senators is but one bullet point in the program. Sure, they are unbending originalists. But they are originalists who happen to believe that everything in the document after the Tenth Amendment is fair game for change—and maybe even some annoying bits before that, too.

 

In early August, talk-show host Glenn Beck brought a couple dozen teenagers onto his show for a freewheeling discussion of all the ways in which America was going downhill. Topics included the separation of church and state and how to tell that Russian President Vladimir Putin hasn’t strayed far from his KGB roots. (It’s the way he swings only one arm when he walks.) But as Beck paced animatedly about the studio in his tieless suit, it was clear that his real concern was whether kids these days are being educated properly about the Constitution. “Who has been taught that the Declaration of Independence is irrelevant today?” he demanded. “Plays no role in today’s society? Just an old dusty document? One, Nicholas has. ... How about the Constitution? That it’s just a relic? Couple of people?” (This is an abiding concern among conservatives—in Michigan, Tea Partiers have been trying to convince schools to let them come in and give their own presentations on the Constitution.)

When I ask Tea Party leaders and organizers who has most influenced their thinking on the Constitution, Beck’s name invariably comes up. On his show, Beck constantly warns that the republic is in decline because we’ve strayed from the principles of the Founding Fathers—principles that, in his view, match perfectly with conservative goals, especially a weak federal government. Take, for instance, his argument against health care: “The Founders could have written it in the original Constitution—they had health care problems back then, too—but they knew the answer was private, not the government.” And that, for him, is enough. “The answer is always restore the Constitution,” he has told his audience, “restore the Founding principles.”

Historically, conservatives have often turned to the Constitution when they are out of power and don’t like what Congress is doing. The 1930s saw the rise of conservative groups like the American Liberty League, which was fixated on the notion that the New Deal was a dangerous threat to the constitutional order. (The Liberty League was an early predecessor of today’s Tea Parties: The 125,000-strong group claimed to be nonpartisan and populist, while receiving plenty of money from wealthy business interests like the Du Pont family.) Alf Landon appealed incessantly to the Constitution during his 1936 presidential campaign against FDR.

This invocation of the Constitution often has religious overtones. In Michigan, one organizer told me that Tea Party members carry around pocket-sized copies of the document—as if it were a talisman of sorts. But Beck is explicit in touting this analogy: He’s fond of saying that “God’s finger” wrote the Constitution, and he has urged his followers to read The 5000 Year Leap, a book written in 1981 by an ultraconservative Mormon, W. Cleon Skousen, who argued that the Constitution has divine origins. The book, Beck says, changed his life. He even wrote the foreword to a version of the tome that was reissued last year—a contribution that undoubtedly helped the book quickly race to number one on Amazon’s best-seller list. It should be noted that the Mormon Church was so horrified by Skousen’s conspiratorial views—his tendency to scream about Rothschilds and Rockefellers pushing the world toward collectivism—that it officially disavowed him in 1979.

In March, just minutes after Obama had signed health care reform into law, staffers for Virginia Attorney General Ken Cuccinelli dashed up to a federal courthouse in Richmond to file a suit to stop the bill. Earlier in the year, Cuccinelli had appeared before a Tea Party rally in the city’s Capitol Square and told attendees, “It’s time for people like you all to step up and draw the lines that our Founding Fathers thought they drew very clearly.” Now, he was doing just that.

Cuccinelli’s legal brief was clever, well-constructed—and deceptively radical. He argued that the newly enacted mandate for individuals to buy health insurance was unconstitutional because, under the Commerce clause, Congress was only allowed to regulate interstate commerce, not “manufacturing or agriculture.” As Ian Millhiser, a legal analyst at the Center for American Progress points out, that’s not an arbitrary distinction—it was one the Supreme Court made in the years before the New Deal, when it was striking down all sorts of regulations, from minimum-wage laws to bans on child labor. “Cuccinelli is being very explicit about his desire to go back to this pre-1930s era,” says Millhiser.

Although Tea Party groups first started invoking the Constitution around the time bank bailouts and stimulus spending were being passed, the craze really flourished after health care reform. Suddenly, conservatives were dusting off every argument they could think of to try to stop the encroachment of the welfare state. Florida Attorney General Bill McCollum joined twelve other states to claim that the Medicaid provisions imposed by the health care bill violated the Tenth Amendment. Virginia and Idaho both claimed the constitutional right to pass “nullification” laws that would prevent the bill from being enacted in their states. And a number of red states have already passed “state sovereignty” resolutions, which, while nonbinding, are essentially notices to the federal government to “cease and desist any and all activities outside the scope of their constitutionally delegated powers.”

Taken to the extreme, this “Tenther” philosophy holds that most social programs—including Medicare and Social Security—are unconstitutional. And, as some critics have noted, the vision of government power being promoted by many Tea Party members, in which states can shoot down any laws they don’t like, isn’t exactly what the Founding Fathers had in mind. “They keep talking about the Constitution, but by weakening the federal government, what they’re actually trying to do is go back to the Articles of Confederation,” says David Gans of the Constitutional Accountability Center. “And that was a failure—it’s what led the Framers to move to the Constitution.”

Still, that hasn’t stopped conservatives from putting forward creative explanations for why the Constitution forbids social programs they don’t like. During the confirmation hearings for Sonia Sotomayor, for instance, Oklahoma Senator Tom Coburn urged the Supreme Court to rein in spending by adopting a narrower reading of the clause in the Constitution that gives Congress the authority to “provide for the ... general welfare of the United States.” And David Barton, a conservative historian who frequently appears on Beck’s shows, has argued that Congress is only allowed to spend money on roads intended for mail travel—even federal highway spending violates the Constitution.

Not all of these arguments appeared out of thin air. Many of them have bobbed around in elite conservative legal circles for years—Clarence Thomas, for instance, seems to largely agree with Cuccinelli’s views on the Commerce clause. And yet, while Thomas may fully understand the ramifications of neutering the federal government, it’s not always clear that the new generation of grassroots constitutional scholars do. Gene Clem, president of the Southwest Michigan Tea Party Patriots, told me that his group’s keen interest in the Constitution came about from a realization that the country had diverged from the Founders’ vision around the 1930s. But when I asked him whether that meant we should go back to the days without Social Security or minimum-wage laws, he was quick to demur. “No, no, no, I don’t think so,” Clem said, before pausing. “I just think we should have an examination of how large government is.”

 

One big problem for Tea Party groups, alas, is that the Supreme Court hasn’t been amenable to their reading of the Constitution for quite some time. During the 1970s, conservatives were painfully aware of this fact and so focused instead on proposing a flurry of amendments on everything from school prayer to busing to abortion. It wasn’t until Ronald Reagan became president that the right started thinking it could get a favorable hearing on its interpretation of the Constitution by stocking the courts with sympathetic judges.

That tactic worked to some extent—as GOP nominees filled the federal bench during the 1980s and 1990s, the courts gradually tilted rightward. But they never made a serious dent in, for instance, Congress’s ability to regulate interstate commerce. And so that leads us to the other big feature of the resurgent constitutional conservatism: its revived fetish for amending the Constitution.

Oftentimes, amendment proponents don’t sound very originalist. Take, for instance, the push by congressional Republicans to rewrite language in the Fourteenth Amendment that grants automatic citizenship to anyone born in the United States so that it excludes children of undocumented immigrants. When Lindsey Graham discussed this proposal on Fox News, he didn’t even bother to appeal to the timeless wisdom of the text. “I’m looking at the laws that exist and see if it makes sense today,” he said. “Birthright citizenship doesn’t make so much sense when you understand the world as it is.”

Then there are amendments to curtail government spending. A new Tea Party coalition, Balanced Budget Amendment Now, has revived calls for an amendment to prevent deficit spending except in times of war or national emergencies. Another popular amendment, which has been put forward by three House Republicans, would limit federal spending to 20 percent of GDP—or slightly below what it was during the Reagan years. “That’s hardly draconian,” Ken Hagerty of Renewing American Leadership, which is pushing for the amendment, explained to the press. “But it’s enough to assure that we keep our republic.” Another amendment would require a two-thirds supermajority in the Senate to raise taxes.

One of the most sweeping suggestions is to repeal the Sixteenth Amendment, which gives Congress the power to levy an income tax. Last year, on Beck’s show, former New Jersey Superior Court Judge Andrew Napolitano called for a constitutional convention (which would require the approval of two-thirds of the states) for this idea: “If that were enacted, it would starve the federal government back into the original footprint that the Founders intended for it.” Beck excitedly ran with the ball: “[I]f there is a serious movement in the public to push for this, it threatens [Congress’s] very existence.” The idea has since been echoed by Nevada Senate candidate Sharron Angle and a variety of Tea Party groups.

Meanwhile, efforts to scuttle the Seventeenth Amendment and the direct election of senators keep gathering steam. Texas Representative Louis Gohmert, for one, has called for a repeal measure in the House. But the issue frequently seems to get Republicans in trouble: A few months after Vaughn Ward’s blunder in Idaho, Colorado Senate candidate Ken Buck had to backpedal on his own support for repeal. Back in 2009, Buck had launched into a tirade on “just what a horrendous effect the Seventeenth Amendment has been on the federal government’s spending.” Yet when recently pressed by a Huffington Post reporter about it, Buck insisted that he no longer held that view—and, in fact, after some reflection had changed his mind the day after the original speech.

The enthusiasm for such amendments has resulted in a kind of arms race, where Republican primary contenders attempt to extol the largest number of constitutional changes. In mid-August, the Baton Rouge Tea Party hosted a debate between Jeff Landry and Kristian Magar, two of the candidates jockeying to be the GOP nominee in Louisiana’s third congressional district. As the applause surged louder and louder, both candidates tried to outdo each other: abolish the Sixteenth and Seventeenth, amend the Fourteenth, issue long paeans to the Ninth and Tenth Amendments. Magar had a leg up in this competition. He had signed a pledge drafted by the Tenth Amendment Center, which includes this vow: “When Congress enacts laws and regulations that are not made in Pursuance of the powers enumerated in the Constitution, the People are not bound to obey them.”

Read literally, the Tea Party strategy is one grand delusion. Enacting a constitutional amendment, after all, would require the assent of two-thirds of the House and Senate, plus the approval of three-fourths of state legislatures. These days, it’s almost impossible to find 60 votes in the Senate for a minuscule jobs bill. It’s difficult to imagine an even larger number of senators signing up to, say, suddenly make their jobs contingent on the whims of a bunch of state legislators by axing the Seventeenth Amendment. What’s more, the Tea Party amendments don’t seem to be especially resonant outside the ranks of the movement. A recent poll by Penn Schoen Berland found that if most Americans were given the chance to amend the Constitution, they’d focus on bolstering gender equality and abolishing the Electoral College, not striking down the income tax.

Still, that doesn’t mean an amendment push is inconsequential. Take the proposed Equal Rights Amendment from the 1970s. That effort eventually died in state legislatures. But, as Yale law professor Reva Siegel has argued, the drive for the amendment, and the debate it fostered, left a huge imprint on legal doctrine. Many of the ideas about gender equality in the amendment have been more or less adopted by the courts. “Efforts to amend the Constitution create an occasion for people to organize and talk to their representatives—it creates this focal point in politics,” says Siegel. And, in the process, cultural values are reshaped in ways that ultimately influence the courts.

Of course, that’s not likely to happen with a push to repeal the Seventeenth Amendment—no amount of discussion will persuade future courts that the direct election of senators isn’t really permitted. But what about the effort to amend the birthright citizenship clause of the Fourteenth Amendment? It’s possible the GOP crusade could nudge the boundaries of the immigration debate further rightward. Lawmakers could try to look for ways to constrict birthright citizenship—there’s already a move to deny birth certificates to children of undocumented immigrants—and the courts could, over time, give these efforts a more favorable ear. With enough momentum, even a wild idea can inch toward the mainstream.

Glenn Beck, for one, seems to understand exactly how the process works. Amid monologues that often stray from political reality, he occasionally flashes self-awareness. During one discussion on his show about the prospects of repealing the Sixteenth Amendment (and, hence, the income tax), he paused and said, “I mean, it sounds ridiculous. You get two-thirds of the states. ... Because the income tax, you can’t, in Massachusetts you can’t get them to say no to it, and so it sounds ridiculous.” Then he steadied himself and seemed to say with a wink, “But again, it’s a serious movement and would force them to move. It doesn’t even have to pass.” 

Bradford Plumer is an assistant editor of The New Republic. This article ran in the September 23, 2010 issue of the magazine.

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