How the Tea Party's fetish for the Constitution as written may get it in trouble.

The law, lawyers, and the court.
Jan. 4 2011 7:02 PM

Read It and Weep

How the Tea Party's fetish for the Constitution as written may get it in trouble.

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Taking legislative authority away from the federal government doesn't necessarily mean freer individuals. It might just mean granting vastly more authority to the states—which already have far broader police powers than most of us would care to admit. "Most of the regulation in our lives comes from state regulations over health, education, safety and welfare," explains Lawrence Friedman, a professor at New England Law, Boston. "We have this idea that if the Congress can't do it, no one can do it, but it's not clear that the states wouldn't do it, and do a worse job." State governments are as likely to be corrupt, bankrupt, and beholden to special interests as the federal government. The only difference may be that state constitutions don't prohibit state legislatures from making you do things you'd rather not do.

Prof. Robert Williams of Rutgers University School of Law, Camden, notes that states have what's called "plenary authority" over much of what isn't spelled out elsewhere, which explains why Massachusetts can force you to purchase health insurance and why some states have much more stringent environmental regulations than the federal rules would require. As a political matter, this might not be worrisome if you live in, say, Idaho, where overregulation is not a concern. But as a constitutional matter, that's an enormous amount of potential authority the Tea Party is willing to shift to the states.

Real libertarians would acknowledge that dysfunctional state legislatures pose as great a threat to individual liberty as a dysfunctional Congress. But this point is frequently elided in discussions about the urgent need to restore state's rights in order to make us all more free. Partly that's because the goal here is to thwart the federal government, period. And partly there is some confidence that if red states ultimately get redder, everyone is going to be freer. Try telling that to a woman seeking reproductive freedom in Virginia. To be sure, the question of federal/state authority to regulate is a complicated one. But shifting vast regulatory power from Congress to the states isn't necessarily the shortest path to individual liberty.

Reasonable people can differ about constitutional values and systems. There's probably no better evidence for that than the Constitution itself. But it doesn't get less nuanced or complicated just because you've read it aloud. It merely gets harder to hear the other side.

Bloggingheads Video: Randy Barnett and Sandy Levinson on the Tea Party's View of Federalism

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