Constitutional Refresher Course

October 21, 2010

In yet another bizarre, embarrassing moment, Tea Party poster child, Chrissie O’Donnell, brought gasps and chuckles to the audience during a debate at a law school by claiming the First Amendment says nothing about separation of church and state.  But don’t pile on Chrissie, folks — every TP candidate thinks this is so.

The TP is a strange fusing of christian fundamentalists and libertarian anarchists, followed meekly by a host of criminally uninformed voters. One of its key planks is a pledge to adhere closely to the US Constitution — an odd desire for people whose views and aims conflict so fundamentally with that document.  They have a work-around to that conflict — wildly misinterpret certain sections, then pretend the rest doesn’t even exist.

For the christian fundamentalist, that literal believer in a bible chock full of glaring contradictions and falsehoods, ‘creative reading’ is second nature.  For the libertarian, living in a delusional world where the US economy was humming along perfectly until wrecked by the New Deal, ignoring facts is child’s play.  The TP version is less a competing interpretation of our nation’s highest law, than a Hollywood-esque “re-imagining” bearing scant resemblance to the original.

Even were their comprehension of the Constitution accurate, the TPers’ call for a “traditional, strict interpretation” has not been seriously considered for over two centuries. The immensely influential chief justice, John Marshall, deemed that the Constitution was “intended to endure for ages to come, to be adapted to various crises of human affairs.”  It was Marshall (in Marbury v. Madison, 1803) who codified the Founding Fathers’ intention to provide for judicial review.  To the Judiciary has been given the exclusive role of interpreting the Constitution.  And for two centuries, the plethora of decisions handed down by Supreme Courts have yielded remarkably consistent interpretations, none of which look anything at all like those TP re-imaginings.  (That hackneyed right-wing complaint over “activist judges” is nothing but frustration at the proper role of the judiciary as established in Marbury.)

While it’s a waste of time to talk reason to the O’Donnell and her fellow delusionals, for the benefit of those confused by the TP’s fanciful re-imagining of the Constitution, here’s a little refresher course.


Separation of Church and State

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….” — Amendment I

O’Donnell is technically correct: the actual words “separation of church and state” never appear in the first amendment, nor anywhere, in the Constitution.  That phrase came from contemporary statements by Jefferson and Madison, who both rejoiced that the Bill of Rights firmly established “a permanent wall of separation,” reflecting the universal desire of the Founding Fathers and the American people. They were intensely concerned that their new nation avoid the fights over state religion and consequent persecutions, tyranny, and civil wars that had devastated England and Europe for centuries.

As confirmation of this well-documented intent, over twenty major Supreme Court decisions have resoundedly confirmed the Constitution’s separation of church and state.  In response, O’Donnell and friends can offer but a flimsy, grammarian sophistry.  (TPM to Chrissie: the words “Bill of Rights” aren’t even in the The Bill of Rights.)  Interestingly, while TPers are quick to claim the First Amendment does not say church & state should be separate, they never explain what it supposedly does say.


The Right to Keep and Bear Arms

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”  — Amendment II

If sheer volume of words is a guide, the Second Amendment is by far the TP’s favorite section of the Constitution.  They should be glad that a truly strict interpretation has not not been applied.  Per 18th century syntax, that opening clause grants one the right to keep and bear arms only as a member of a well regulated militia — and a dozen skinheads shooting cans in Idaho is not what the Founding Fathers had in mind.

Written by some former minutemen, the Second Amendment has not aged well.  Our present day militia is called the National Guard.  Forced to adapt this amendment to modern times, the courts have chosen an exceedingly broad interpretation, granting the government powers based on the “well-regulated” part (shotgun? yes; flamethrower? no), while generously ignoring the militia membership requirement for citizens.  The interpretive pedant could also point out that, strictly, there’s nothing about protecting one’s right to keep and wear armor.


Unconstitutionality of The Federal income Tax

TPers’ aversion to taxation exceeds that of the Wicked Witch of the West to water buckets.  With increasing brazenness, they matter-of-factly state that the federal income tax is unconstitutional.

Now, considering its import and broad scope, the Constitution is a surprisingly short document.  So it seems a bit sloppy for the TPers to have missed Article 1, Section 8, which states:

“The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States…. “

and then goes on to give a long list, known as the enumerated powers, of all the things Congress can do, then finishes by further granting Congress power “to make all Laws necessary and proper for carrying into execution the foregoing Powers….” Stricties claim this is a narrow permission list.  But beginning with Marshall, every Supreme Court has confirmed that the seventeen clauses of wide-ranging enumerated powers permit Congress considerable “discretion with respect to means … to enable that body to perform the high duties assigned to it in the manner most beneficial to the people.”

If Art I, Sec 8 was not convincing enough, Amendment XVI, passed in 1913, puts the taxation question to rest:

“The Congress shall have power to lay and collect taxes on incomes, from whatever source derived….”

There are even those who insist the USPS is unconstitutional, perhaps based on the obscure wording of this Art 1, Sec 8 clause:

“The Congress shall have Power … [t]o establish Post Offices and post Roads….”

Ah!  But the TP has found a way to get around the enumerated powers, with a trick last employed by the Confederacy.


State’s Rights

TPers are gaga for States’ Rights — the concept that ultimate sovereignty lies not with the United States, but rather with each individual state.  As proof, they cite Amendment X:

“The Powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the People.”

The Tenth Amendment, they (O’Donnell, apparently, excepted) argue, negates Art 1 Sec 8, leaving the Federal Government with almost no enumerated powers, meaning nearly every federal law ever passed can be ignored.  But the Supreme Court ( United States v. Sprague, 1931) found that the Tenth amendment “added nothing to the instrument as originally ratified.”

It defies credulity to imagine the Founding Fathers carefully codifying their highest ideals into federal law, only to immediately add an amendment that permitted lesser jurisdictions to ignore those ideals —  thus undermining majority rule and rendering the federal democracy non-functional.


The Party of Nullify

Also known as Nullification, this principle was first proposed during the late 1820’s, when Georgia wished to circumvent Federal Indian treaties so they could to drive the remaining Indians off their land.  The Supreme Court ruled (albeit too late for the Indians) against Georgia.

In 1832, South Carolina’s legislature, claiming State’s Rights to ignore federal tariffs designed to help (largely Northern) industry, passed a resolution to secede if the tariffs were not abolished. In response, President Jackson sternly declared

“the power to annul a law of the United States, assumed by one State, incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which it was founded, and destructive of the great object for which it was formed.”

The Palmetto state claimed the right to Nullify again in 1860 over another issue.

Today, TPers turn to Nullification as cover to reject any federal statute they don’t care for.  Not just “obamacare”, but also women’s choice, gay equality, social security numbers, and, as always, those evil taxes.  When a TP candidate mentions the Tenth Amendment, it’s nothing less than a coded threat to secede.


“Read Carefully Before Operating”

In retrospect, TPers should rethink their professed love for the Constitution.  Their vision of America is clearly at odds with that of its authors.  Still, had the TPers bothered to either read the Constitution onlinedownload it, or ask their buddies at the Heritage Foundation to send them a free copy, they’d have discovered a nifty way to rewrite the Constitution to their liking — the simple how-to instructions are laid out right there in Article V.  Maybe getting two-thirds of fellow Americans to agree with their crack-pot vision seemed a little daunting. So instead, TPers have chosen to simply ignore the law of the land.

For a centuries-old, hashed-out compromise, the US Constitution was written with prodigious clarity and amazing foresight.  It was never perfect, but frequent revision and reasoned interpretation has allowed it to keep up fairly well with developments. It’s the user’s manual thoughtfully left by the Founding Fathers in the glove compartment of our nation.  Anyone seeking to operate the machinery of government should first thoroughly familiarize themselves with it.


(c) 2010 by ‘tamerlane.’  All Rights reserved.