The conservative mission to destroy the Constitution in order to save it.

The law, lawyers, and the court.
Dec. 3 2010 6:21 PM

Repealing Common Sense

The conservative mission to destroy the Constitution in order to save it.

House Majority Leader-elect Eric Cantor. Click image to expand.
House Majority Leader-elect Eric Cantor

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.

In this light, it is easy to understand the right's renewed eagerness to pitch particular amendments into Boston Harbor. What is harder to explain, from a historical perspective, is why they are now willing to take a shot right at the heart of the Constitution—the division of power between the states and the federal government, that exquisite balance that our forefathers labored long and hard to get right lest the whole experiment implode again as it had under the Articles of Confederation. There have long been popular movements to "reclaim" the original Constitution. The Repeal Amendment is not one of them.

There is so much wrong with the Repeal Amendment that it's difficult to know how to begin to respond. The Constitution is—by design—a nationalist document. It is also—again by design—an anti-democratic document. American history reveals precisely what happens when state or regional interests are allowed to trump national ones, and the Constitution has been at its best (for example, the Reconstruction Amendments) when it has addressed (and, better yet, resolved) that tension. Rick Ungar argues that the effect of allowing the states to veto any federal law that displeases them would be a return to a past that would endanger the very existence of the Civil Rights Act, any environmental protections, and various health and safety laws. As he explains:

Would the city of New Orleans ever be rebuilt following a Katrina disaster if 2/3 of the states were empowered to repeal federal legislation appropriating the money to do so? After all, what's in it for Texas? Or Ohio? While the port of New Orleans may be essential to the movement of goods into the nation—and certainly important to the economic viability of the city—the loss of the port would mean more business to other ports of entry in Texas or other regional centers. What, exactly, would be the motivation of any state that is not Louisiana to support the economy of New Orleans?

And as Ungar concludes, "If this sounds familiar, it should. We've seen what happens when regional economic interests trump the desire to maintain the unity of our states. It was called the American Civil War."

Yet what we have heard in response to the Repeal Amendment from liberals is near-total radio silence. And it's not because liberals are eager to see a return to the conditions that led to Jim Crow or the Civil War. We just seem to have forgotten how to talk about the Constitution as if it's ours, too. After years of failing to respond to Reagan-era cries of "liberal judicial activism," and failing to push back against the singular perfection of originalism, it's as if we've ceded the entire document to conservatives—as well as the fight over its history and meaning.

It is one thing to fetishize states rights and the will of the people above all things. It's quite another to anchor that fetish in the Constitution itself—which was drafted to be a bulwark against both.

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Correction, Dec. 6, 2010: The original image on Slate's home page linked to this article depicted the signing of the Declaration of Independence, not the signing of the Constitution.

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. Follow her on Twitter.