“The Tea Party Will Never Understand The Constitution”: What The Right Misses About Its Favorite Document
With the 2016 election cycle having kicked into first-gear already, any American who hasn’t inured themselves to the monotonous (and often ultimately meaningless) repetition of the word “Constitution” is advised to get to self-desensitizing — and quick.
Sens. Rand Paul and Ted Cruz have already made a fetishized version of the U.S.’s supreme governing document central to their campaign rhetoric; and even politicians less beloved by the supposedly Constitution-crazy Tea Party, like Jeb Bush or Hillary Clinton, are likely to soon follow suit. That’s how American politics functions now, in the era of the NSA, Guantanamo Bay, lethal drone strikes and endless war.
But as that list of questionable policies suggests, there’s an unanswered question lurking behind so much of our happy talk about the Constitution — namely, do we even understand it? As dozens of polls and public surveys will attest, the answer is, not really. And that’s one of the reasons that Yale Law School professor Akhil Reed Amar has decided to write a multi-book series about the Constitution so many Americans claim to love, but so few seem to understand. “The Law of the Land: A Grand Tour of our Constitutional Republic,” released earlier this month, is that project’s latest addition.
Recently, Salon spoke over the phone with Amar about the Constitution, his books, and why he sees Abraham Lincoln as perhaps the United States’s real founding father. Our conversation is below and has been edited for clarity and length.
So this book is part of a larger, multi-book project on the Constitution. The first was a biography of the document, the second was about its “unwritten” provisions, and this is the third. What’s your focus this time?
The third book in this project is a geographical slicing of the story; ours is a vast republic of massive diversity, and the Constitution looks a little different in different states and regions. I try to show all of that that through 12 stories … each of which says something general about the United States Constitution but does so through the window of a particular state. It discusses a person or an idea or a case or an event particularly associated with that region that also casts light, more generally, on our Constitutional project.
So how did what you call “brute geography” influence the way we understand the Constitution today?
The very breadth of the American landmass and its distance from the old world were huge elements in the American founding and in the Civil War experience. The idea of creating an indivisible union in the 1780s, the idea of forming a more perfect union, was an idea powerfully influenced by these two geographic factors: a wide moat between the Old World and the New World (known as the Atlantic Ocean) would be able to protect Americans from Old World tyranny in the same way the English Channel protected Britain from much of the militarism of the European Continent…
But in 1787, as Americans looked around the world, they saw that Britain was free, and Britain was free because England and Scotland had merged, had formed an indivisible, perfect union that would protect liberty because they had gotten rid of land borders on the island and only needed a navy to protect themselves. That worked for England and that would work for America even better, because we’d have an English Channel times 50.
This will become manifest destiny and the Monroe Doctrine; we’ll control our hemisphere and we’ll be protected from Europe … Our Constitution largely succeeds because there’s no major standing army in peacetime for most of American history, and that fact is created by some brute geographic realities.
I’m speaking to you now right around the 150th anniversary of Lincoln’s assassination. He looms very large in your book; you describe him in some ways as almost prophetic. What made Lincoln’s understanding of the country and the Constitution so profound?
We live in Lincoln’s house. The Framers’ house was divided against itself; and, because of slavery, it fell. That failure is called the Civil War, and Lincoln rebuilt [the country] on a solid anti-slavery foundation, a foundation that would be strengthened after his death by the ratification of the Thirteenth Amendment (which abolished slavery everywhere, irrevocably), the Fourteenth Amendment (which promised racial equality) and the Fifteenth Amendment (which promised equal voting rights).
I begin the book with Lincoln because he transformed the Union. He saved it and transformed it and … his story was very much influenced by, literally, where he came from. He has a vision of the Constitution that’s very much influenced by Illinois, in particular, and by the Midwest more generally. He comes from a part of the country that was the Northwest Territory, that was always free soil even before the Constitution, and he has a very free-soil vision.
How so?
The language of the 13th Amendment is borrowed, word-for-word, from the language of the Northwest Ordinance. Lincoln thinks that the nation created the states, which, of course, Robert E. Lee … could never buy into. Robert E. Lee would say that the states created the Union; but the Midwest [perspective] would say … before Illinois was a state, it was a territory; the Union created these new states out of nothing. That’s a very Midwestern perspective on the Constitution.
Lincoln is, far and away, the most important constitutional decision-maker of the last two centuries; and arguably the most important constitutional decision-maker and interpreter ever.
But Lincoln was never a judge nor a constitutional scholar. He was a politician.
Most people are taught in high school that the most important constitutional decision is Marbury v. Madison, but that’s not even the most important constitutional decision of 1803. The Louisiana Purchase was far more important than Marbury v. Madison, because it doubled the landmass of America and made sure that the country would survive. When you understand that, you understand that many important constitutional decisions are made not by judges but by presidents.
The two most important constitutional decisions ever are Lincoln’s decision to resist [the South’s] unilateral secession, and Lincoln’s decision to issue the Emancipation Proclamation, which would lead to an end of slavery — that is transformative, and Lincoln made those decisions unilaterally as president. Had these issues reached the U.S. Supreme Court, controlled as it was [during Lincoln’s time] by Roger Taney, a fierce opponent of Lincoln, the Court might very well have tried to invalidate Lincoln’s projects.
We live in a Constitution utterly transformed by the 13th, 14th, and 15th amendments, and we would have none of those but for Lincoln.
Lincoln aside, though, you also argue that geography has played a big role in the Supreme Court — which, of course, is supposed to be the chief interpreter of the Constitution. How did geography influence the Court’s history?
Let’s take the most infamous judicial ruling of all time, the Dred Scott decision of 1857. It emerges from a Supreme Court that’s profoundly malapportioned: five of the nine justices on the Dred Scott court come from the slave-holding South, even though only a third of the population lives in that region.
Part of that is because entire antebellum system is skewed towards the South because of the three-fifths clause, which gives slave states extra clout in the House of Representatives and therefore the Electoral College. Presidents are picking justices, and the presidency tilts towards the South because of the three-fifths clause; almost all your early presidents are either slave-holding Southerners or “Northern men of Southern sympathies” — that is, pro-slavery Northerners.
If we view the Constitution and American history with more of a focus on the role played by geography, what are some the implications for U.S. politics today and in the near-future?
One of the things I’m trying to tell you in this book is how we can see presidential elections and our political polarization in new ways if we’re attentive to states and regions.
Our parties are polarized geographically; that this is not the first time that’s so (early on, it was the South against the North; Jefferson against Adams). The geographic alignment is remarkably similar to the geographic alignment in Lincoln’s time with this interesting twist: the Democrats have become the party of the North and the coasts and the Republicans have become the party of the former Confederacy. The parties have basically flipped, but it’s the same basic alignment…
One of the other big things I want you to see is how regions and states are hugely important in, for example, presidential politics. I talk about the significance in this book, in particular, of Ohio and Florida in the Electoral College and also of Texas. Is it a coincidence that Marco Rubio comes from Florida? That Jeb Bush is the governor of Florida who was born in Texas and whose father and brother had their political bases in Texas? That Rand Paul was born in Texas and his father ran for president from Texas? That Ted Cruz is from Texas? That Rick Perry is a former governor of Texas?
By: Elias Isquith, Salon, April 21, 2015
“Promises Not Yet Recognized”: Enshrine The Right To Vote In The Constitution
Flags flew at half mast, schoolchildren recited the “Gettysburg Address” and for a few hours on April 15, America paused to remember that a century and a half ago this country lost its 16th president to an assassin’s bullet.
Now, Americans can finish with the pause and begin to fully honor Lincoln.
The place of beginning is with an embrace of the work of reconstruction that was imagined when Lincoln lived but that is not—even now—complete.
President Obama proclaimed April 15 as a National Day of Remembrance for President Abraham Lincoln, declaring, “Today, we reflect on the extraordinary progress he made possible, and with one voice, we rededicate ourselves to the work of ensuring a Government of the people, by the people, for the people, shall not perish from the earth.”
Obama was right to focus on Lincoln’s great preachment on behalf of American democracy. It directs our attention toward the mission to which small “d” democrats of all partisanships and ideologies must rededicate ourselves.
One hundred and fifty years after the moment when a still young country saw the end of a Civil War and the assassination of a president, the events of April 1865 continue to shape and challenge the American experience.
With Lincoln’s death, an inept and wrongheaded vice president, Andrew Johnson, succeeded to the presidency. Had it been left to Johnson, who vetoed the Civil Rights Act of 1866, the progress extending from the great sacrifices of the Civil War would have been imperiled. But the rough outlines for securing the victory were not left to a president. They were enshrined in the US Constitution.
Three amendments to the founding document were enacted during the five-year period from 1865 to 1870. These “Reconstruction Amendments”were transformational statements—even if their promise has yet to be fully recognized or realized.
The first of the amendments addressed the great failure of the founding moment: a “compromise” that recognized—and effectively permitted—human bondage.
The Thirteenth Amendment to the Constitution affirmed that “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”
Those words confronted the indefensible “Three-Fifths Compromise,” which was outlined in Article 1, Section 2, Paragraph 3 of the Constitution as it was framed in 1787. That paragraph did not speak specifically of slavery, but instead referred to two groups of Americans: “the whole Number of free Persons” and “all other Persons.”
The 13th Amendment was an essential step toward an official embrace of Thomas Jefferson’s “immortal declaration”of 1776—that “all men are created equal.”
But it was not enough.
To the 13th Amendment of 1865 was added the Fourteenth Amendment of 1868, which confirmed that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The 14th Amendment, remarkable in its clarity and detail, provided for due process and equal protection under the law.
But it was not enough.
To the Thirteenth Amendment of 1865 and the Fourteenth Amendment of 1868 was added the 15th Amendment of 1870, which avowed that “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”
Congress was given the power to enforce these articles by appropriate legislation.
But that was still not enough, as became obvious with the collapse of Reconstruction and the establishment of “Jim Crow” segregation in states that had been part of the Confederacy. With these ruptures came overt discrimination against voting rights.
It took more than a century of litigation, boycotts, protests and marches to restore the promise of equal protection and voting rights.
But that was not enough.
Despite the protections delineated in the Civil Rights Act of 1964 and the Voting Rights Act of 1965, as well as the Twenty-Fourth Amendment to the Constitution (which in 1964 formally banned poll taxes), headlines remind us that the right to vote is “still threatened.” The US Supreme Court has mangled the Voting Rights Act, and the Congress has failed to repair the damage done. The Brennan Center for Justice has determined that at least 83 restrictive bills were introduced in 29 states where legislatures had floor activity in 2014, including proposals to require a photo ID, make voter registration more difficult, reduce early voting opportunities, and make it harder for students to vote.
“The stark and simple truth is this—the right to vote is threatened today—in a way that it has not been since the Voting Rights Act became law nearly five decades ago,” said President Obama.
The great American process of forming a more perfect union is far from complete. The events of 150 years ago were not the end of anything. They were a pivot point that took the United States in a better direction. But the was incomplete, and insufficient to establish justice. So the process continues.
That is why Congressmen Mark Pocan, D-Wisconsin, and Keith Ellison, D-Minnesota, have proposed to amend the Constitution to declare clearly and unequivocally that
“SECTION 1: Every citizen of the United States, who is of legal voting age, shall have the fundamental right to vote in any public election held in the jurisdiction in which the citizen resides.
“SECTION 2: Congress shall have the power to enforce and implement this article by appropriate legislation.”
The Pocan-Ellison amendment will not, in and of itself, form a more perfect union. But it provides a tool for those who understand that we best honor our history by recognizing unmet promises—and seeking, finally, to keep them.
“A core principle of our democracy is the ability for citizens to participate in the election of their representatives,” explains Pocan. “We have seen constant attempts by some states to erode voting rights and make it harder for citizens to vote. This amendment would affirm the principle of equal participation in our democracy for every citizen. As the world’s leading democracy, we must guarantee the right to vote for all.”
By: John Nichols, The Nation, April 16, 2015
“Indiana Takes On America”: Discrimination Against Gays, Religious Freedom And Rewriting The Constitution
The easy part is over. Americans now understand what the Indiana “Religious Freedom” law was intended to do: legalize discrimination by private businesses against homosexuals. It’s not a secret, as Eric Miller of Advance America said. Indiana acted “to help protect churches, Christian businesses and individuals from those who want to punish them because of their Biblical beliefs! Christian businesses and individuals deserve protection from those who support homosexual marriages. A Christian business should not be punished for refusing to allow a man to use the women’s restroom!”
Anti-gay bias and intent to discriminate are itself reasons to oppose the new law. But there’s much more at stake. The organized Right is re-writing the Constitution and the impact will not be limited to gay Americans.
The supporters of the Indiana law are more diverse, intellectually capable, and more widely found across America than we think. Nineteen states have such laws, and not just the Old Confederacy. Liberal Rhode Island has one. The Indiana Catholic Conference supported the law (It “is very important to secure its passage”). The Indiana legislature considered it carefully, had hearings and received pages of testimony from distinguished legal scholars. (The Bill and the Testimony can be found at: The Bill; The Testimony)
There are elements of their argument that most Americans would support. We widely accept that religious organizations and places of worship should be free to practice what they believe. Should a church have to marry people outside its faith and beliefs? Should a Catholic church be legally required to perform a same-sex marriage? Should an Orthodox shul or a mosque be legally required to hire female rabbis and imams? Probably not.
It makes you think. Most Americans would say that some laws, even good ones, don’t apply inside a place of worship. If that is all the Indiana law did, it would not have stirred up the current commotion.
But Indiana went well beyond that. The law extends the inside-the-church exemption to commercial enterprises. Business corporations get the same protection that a church gets.
If you think you’ve heard this before, you’re right. It’s the same argument used to attack Obamacare in the “Hobby Lobby” lawsuit. That time is was about insurance coverage for contraception, but the argument was the same.
And you also heard a variant in Citizens United, where the Supreme Court conservative majority said corporations have the same constitutional free speech rights as do living, breathing people.
The traditional view was that by engaging in business, you agreed to live by the laws of commerce. If not, then religious belief could justify segregation, or refusal to hire or serve women, or Muslims, or Catholics, or Jews. Or gays. There were, and are, a lot of sincerely religious people who would jump at that opportunity. The Indiana law re-establishes the right to commercially discriminate, especially against gays, if that’s your religious teaching.
The Indiana brouhaha illuminates the broader, and more dangerous legal strategy at the heart of Tea Party, right-wing ideology, the personification of corporations. By enlarging the constitutional rights of powerful, wealthy and largely conservative corporations, the Right is diminishing the constitutional rights of most Americans.
It isn’t the least bit “conservative”. It is a radical, un-American, reactionary re-writing of our basic freedoms. We had struck a constitutional balance between private religious observance and public commercial activity. Real conservatives would be looking for a way to reasonably accommodate both interests.
With any luck, what’s going on in Indiana will provoke a better understanding of what the Right is attempting. In the end, Tea Party skepticism of government intrusion on personal liberty is perfectly reasonable. But in this century, our liberties can be equally threatened by rewriting the Constitution to empower corporations that impinge on our liberty with equal effect.
Practice your religion in peace and dignity. Do business without discrimination and bigotry. Sounds easy.
By: Richard Brodsky, Senior Fellow, Demos; The Blog, The Huffington Post, March 29, 2015
“The Rumblings Of Insurgency”: Quoting Facts And Naming Names
The letter written by Sen. Tom Cotton to the leaders of Iran and signed by 47 Republicans is not simply outrageous because it presents a dangerous challenge to the Constitutional framework under which the United States conducts foreign policy. It is important that we remember the context in which it came about. Here are a few recent events we need to keep in mind.
In a dramatic show of defiance toward the federal judiciary, Chief Justice Roy S. Moore of the Alabama Supreme Court on Sunday night ordered the state’s probate judges not to issue marriage licenses to gay couples on Monday, the day same-sex marriages were expected to begin here…
“I think I’ve done what I can do: advise the state court probate judges that they’re not bound by any ruling of the Federal District Court,” he said…
His argument has deep resonance in a place where a governor, George Wallace, stood in a doorway of the University of Alabama in 1963 in an unsuccessful bid to block its federally ordered integration.
Although much has changed from Wallace’s era, Chief Justice Moore had used a series of strongly worded letters and memorandums to insist that Judge Granade, an appointee of President George W. Bush who joined the federal bench in 2002, had instigated a grave breach of law.
Majority Leader Mitch McConnell on EPA regulations:
So what are governors and state officials who value the well-being of the middle class to do? Here’s my advice:
Don’t be complicit in the administration’s attack on the middle class. Think twice before submitting a state plan — which could lock you in to federal enforcement and expose you to lawsuits…
So for now, hold back on the costly process of complying.
And here’s the first thing I would do if I were president of the United States. I wouldn’t let Congress leave town until we fix this. I would literally use the military to keep them in if I had to. We’re not leaving town until we restore these defense cuts. We are not leaving town until we restore the intel cuts.
(Note: apparently Sen. Graham’s spokesperson suggested that when he said “literally,” he didn’t mean “literally.”)
Those aren’t the rantings of right wing radio hosts or tea party rabble rousers. They are the words of Republican leaders suggesting and/or recommending illegal actions. In other words, they are the rumblings of insurgency.
I don’t say that to fear-monger or join some bandwagon of hysteria. I’m simply quoting facts that we need to acknowledge and name accordingly.
By: Nancy LeTourneau, Political Animal Blog, The Washington Monthly, March 15, 2015
“The Next Attack On Voting Rights”: Why Democrats Should Fight For A Constitutional Right-To-Vote Amendment
The last round of voter restrictions came after the 2010 Republican wave, when new GOP majorities passed voter identification laws and slashed ballot access in states like Pennsylvania, Ohio, and Florida. Now, three months after the 2014 Republican wave, another class of state lawmakers are prepping another assault on voting rights under the same guise of “uniformity” and “ballot integrity.”
In Georgia, reports Zachary Roth for MSNBC, Republicans are pushing a bill to slash early voting from the present maximum of 21 days to 12 days. The goal, says Rep. Ed Rydners, a sponsor of the proposal, is “clarity and uniformity.” “There were complaints of some voters having more opportunities than others,” he said, “This legislation offers equal access statewide.” If cities like Atlanta want to have more voting access, said Rydners, they could open more precincts and “pay to have poll workers present.”
In Missouri, this new push comes as a constitutional amendment overturning a 2006 ruling from the state Supreme Court, which struck down voter ID as illegal under the state’s Constitution. Last Wednesday, notes Roth, the state’s House of Representatives gave “initial approval” to two measures: “One would put a constitutional amendment on the ballot asking voters to allow voter ID, and the other would implement the ID requirement, should the amendment pass.” The rationale? Voter fraud. “It’s not disenfranchising voters,” says state Sen. Will Kraus, who sponsored the amendment. “Voters who vote multiple times are diluting their vote.”
In New Hampshire, according to a recent report from the Brennan Center for Justice, Republicans are aiming for a hat trick of voter restrictions. If signed into law, their bills would limit voter registration efforts and reduce other registration opportunities, make it harder for students to register and vote, and reduce the number of precincts open per voter, a move that would lengthen voting lines and make the process a greater chore for working people and others with difficult schedules.
Likewise, per the Brennan Center, Mississippi Republicans are pursuing a bill that would “decrease the likelihood that otherwise-eligible voters who cast provisional ballots will have their votes counted in the races for which they are eligible,” and in Indiana, lawmakers have introduced measures to end automated straight-ticket voting and “secure” absentee ballots by requiring a voter identification number. “I just think people need to take the time to learn about who they are voting for before going in rather than just pushing a button for straight party,” said Rep. Milo Smith, chair of the Indiana House Elections Committee. “I think that makes for a better election process.”
It’s always worth noting the scant evidence for these moves. In Missouri, for instance, the Brennan Center found only four cases of in-person voter fraud, for a “documented fraud rate” of 0.0003 percent. There is no problem to solve; the policy rationale for limiting registration drives or requiring photo identification—instead of a standard-issue registration card—doesn’t exist. And if it did, there’s no reason for a restrictive approach; automatic registration and free ID cards are just as effective as anything proposed by state and federal Republicans.
Politically, however, there’s a lot to gain from these laws. Every new barrier to voting makes it harder for the most marginal voters to get to the polls. And given the demographics of voting—the least frequent voters are poorer, browner, and less educated than their most frequent counterparts—it’s in the Republican Party’s interest to shrink the electorate as much as possible.
It’s the undeniable partisanship of new voter laws that explains the new “right-to-vote” plank in the platform of the Democratic National Committee. At its winter meeting last week, the DNC endorsed a constitutional amendment for the affirmative right to vote. “The Democratic Party stands for inclusion, and we know that we are all better when everyone has a voice in the democratic process. The right to vote is a moral imperative, and I am proud to support this resolution,” said DNC Vice Chair of Voter Expansion and Protection Donna Brazile in a statement.
Readers with an eye toward the Constitution might say that we already have a right to vote. “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude,” says the 15th Amendment, ratified 145 years ago this month. There’s also the 14th Amendment, which treats the individual right to vote as sacrosanct barring crime or rebellion.
But notice the language. The 15th Amendment forbids governments from denying or abridging the right to vote on the basis of identity, but it says nothing about obstacles to exercising the franchise. And while the 24th Amendment forbids poll taxes and other racialized barriers to voting, the Constitution is mum on race-neutral disenfranchisement. Put differently, the Constitution allows voter suppression as long as it doesn’t trip any of its race or gender wires.
The goal of a right-to-vote amendment is to change the dynamic and place the burden on restrictionists. In a sense, it would make the pre–Holder v. Shelby Voting Rights Act a standard for the entire country. States and localities would have to make voting as accessible as possible, with a high standard for new barriers.
And while the odds of winning a right-to-vote amendment are low—one reason Democrats should invest more effort in state elections—there’s tremendous value in mobilizing around the issue. A movement for a right-to-vote amendment could encourage laws and norms that expand participation irrespective of an amendment in that direction. Think of it as a liberal counterpart to the “personhood” amendments used to mobilize anti-abortion conservatives around smaller—but just as potent—limits to abortion rights.
Indeed, if she hasn’t, Hillary Clinton should take notice of this DNC resolution. To win in 2016, Clinton will have to repeat Obama’s performance with black Americans and other minorities. Building that enthusiasm won’t be easy, but something like a right-to-vote proposal could help her start that fire.
By: Jamelle Bouie, Slate, February 25, 2015
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