Repealing Common Sense
The conservative mission to destroy the Constitution in order to save it.
Posted Friday, Dec. 3, 2010, at 6:21 PM
A shot heard 'round the legal world it wasn't. It started quietly enough: In April 2009, constitutional scholar Randy Barnett published an op-ed in the Wall Street Journal offering proposals by which the Tea Party might amend the Constitution to "resist the growth of federal power." The most radical among them was an amendment permitting two-thirds of the states to band together and overturn any federal law they collectively dislike. Very few people noticed. When tea-infused Republican candidates hit the hustings this year, pledging to topple a tyrannical federal government, they did not avail themselves of Barnett's talking points. As of September, the most prominent elected leader espousing the idea of a "Repeal Amendment" was Virginia House Speaker Bill Howell.
Now, just two months after the proposal was a twinkle in a Virginia legislator's eye, the leadership of nine states is showing interest, and the popularity of the amendment's Web site (they have them nowadays) has "mushroomed." And this week, completing the proposal's rapid march from the margins to the mainstream, Rep. Rob Bishop of Utah introduced the amendment in the U.S. House of Representatives, pledging to put "an arrow in the quiver of states." The soon-to-be House Majority Leader, Eric Cantor, said this week that "the Repeal Amendment would provide a check on the ever-expanding federal government, protect against Congressional overreach, and get the government working for the people again, not the other way around." Fawning editorials in the Wall Street Journal and chest-heaving Fox News interviews quickly followed.
For a party (whether of the Tea or Grand Old variety) that sees the Constitution as something so perfect as to have been divinely inspired, the idea that it needs to be altered fundamentally is beyond crediting, something like putting the Fifth Commandment up to a popular referendum. But the Tea Party vision of the Constitution has never been one of fidelity to the document itself, or even to the Framers. Instead, it's a devotion to those scraps and snippets of the Constitution they accept, an embrace of only the Framers they admire, and an eagerness to jettison anything that conflicts with or complicates that vision, including the rest of the Constitution.
Here, then, if you needed it, is another indication that the Republican Party—in an act of grand, ongoing, unconscious irony—is assigning true conservatism to the ash heap of history and replacing it with a brand of radicalism in which nothing, not even the Constitution, is sacrosanct.
Traditionally (and what is conservatism if not respect for tradition?) conservatives have railed against "Constitutional tinkering," while progressives have proposed all manner of amendments—some successful (women's suffrage), others not (equal rights for women), still others, well, a bit unserious (a ban on "war for any purpose"). In 1925, Chauncey Depew, a former senator from New York, complained that "every crank wants to throw a crank into [the Constitution]. Let us preserve it," he said, "as we have had it for 140 years." William Howard Taft was so allergic to the idea of altering the Constitution that, upon losing the election of 1912, he created a "Constitutional League" within the GOP with the mission of preserving the Constitution "in its present form." In the New Deal era, the battle cry was "save the Constitution": Stop, back away, do not defile the national charter.
As the historian Michael Kammen has chronicled, conservative cries of "hands off!" reflected the right's sense of confidence that the intent of Founders ran inexorably in the direction of "state sovereignty," property rights, and individual liberty. In other words, Mr. Madison et al. had put it all right there on paper—all the protection America needed against the excesses of democracy and the centralization of power. So why mess with success?
Of course, successive generations messed with it plenty. Conservatives looked at the Constitution in the 1920s and 1930s and thought it chock-a-block with ill-advised amendments. There was plenty of grousing on the right about the 14th and 15th (establishing civil rights for African-Americans), as well as the 17th (the direct election of senators), and it could not have been easy to find a fan of the 16th (allowing for the income tax) at a meeting of the local Elks or Kiwanis. Then, of course, came the 18th—Prohibition—stumbling into the Constitution like a—well, you know—and knocking over the china. Each of these, in its own way, felt to conservatives like a rebuke to the Framers.
Jeff Shesol is the author of Supreme Power: Franklin Roosevelt vs. The Supreme Court and is a former speechwriter for President Bill Clinton
Dahlia Lithwick writes about the courts and the law for Slate.
Photograph of Eric Cantor by Mark Wilson/Getty Images.