Thursday, December 30, 2010

So Which Parts of the Constitution Do Republicans and the Tea Party Support

Next week, the new Republican-led, Tea Party infested House of Representatives plans to read the Constitution. This is probably a good idea. I suspect that many members (of both parties) may be surprised when they learn what is and isn’t in that document.

Over the last two years, we’ve heard quite a bit about “restoring” the Constitution or how President Obama is somehow “shredding” the Constitution. As it should be, the Constitution is an important document to the Tea Party. However, I have to wonder just how much of the Constitution the tea party really likes, let alone understands. So, I thought I’d read through the Constitution (I actually started this post way back on Constitution Day) and think about what I read with the Tea Party in mind.

Let’s start with the Preamble (always a good place to start, and I can’t help but sing this part thanks to Schoolhouse Rock):

We the People of the United States, in Order to form a perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Several things jump out at me. First, I note the concept of forming a “perfect Union”. I won’t even take the time to make the cheap joke about unions obviously being a good thing (oops, I guess I just did). But I do wonder how those who threaten secession if they don’t get their way, square that position with the Preamble. I also note the desire to “insure domestic Tranquility”. Again, how does that square with people saying “We came unarmed this time” or talking about “exercising Second Amendment rights”? Those sorts of threats of violence don’t exactly seem to be in line with the broad concept of domestic tranquility.

Most important, of course, is the phrase “promote the general Welfare”. Sure we can argue about what exactly that means, but I think that we can probably all agree that the idea is for everyone to do well, not just the richest among us, and that it is the responsibility for We the People, through the government that was created in the Constitution, to help those least able to help themselves.

Oh, and one more thing: Did you find any reference to G-d or Jesus or a declaration that America is a Christian nation in the Preamble? No? Me neither. Hmm.

Another thing that we often hear from tea partiers and other strict constructionists is that the Constitution was a “perfect” document when adopted and that it doesn’t evolve or need to evolve (except when they want to amend it…). Yet one has to ask, if that’s true, why have amendments been necessary. Moreover, how can anyone rationally claim that the original Constitution was perfect when it included provisions like this clause from Article I Section 2 (since modified by the 14th Amendment):

which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

In other words, Indians didn’t count as Persons (unless they were taxed) and slaves counted as three-fifths of a Person.

Next I noticed something that I’d never thought about in prior readings of the Constitution. Article 8 enumerates the powers of Congress (and I could probably say a lot more about some of those other powers) including:

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

Just out of curiosity: Does Congress have the power to raise, support, provide, or maintain an air force or space agency? Remember, to strict constructionists, the Constitution is not a “living” document that evolves with time; rather it is immutable, except by amendment. So if the Constitution specifically mentions the army and navy (and “land and naval Forces”) and not the broader term “military” (or “air Forces”) then doesn’t that call into question the right of Congress to create an air force or space agency? I’m sure that some could argue that the Founders didn’t anticipate flight or space travel; then again, I doubt that they anticipated the telegraph, telephone, television, satellite radio, eBooks, or the Internet, either. I don’t think they really anticipated modern pharmaceuticals, nuclear weapons, or guns that fire dozens of armor-piercing bullets in just seconds. And they probably didn’t anticipate lethal injection or the ability to travel across the entire country within a span of hours. And I certainly doubt that they anticipated Hari Krishnas or Scientologists.

I also note the following power of Congress:

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

So does that mean that Congress has the power to call the Militia to suppress tea partiers who make threats of violence against the country? Now that would be interesting.

Article I Section 9 also provides that “No Bill of Attainder or ex post facto Law shall be passed”. This provision might be of interest to those in Congress who, on the basis of bad information in the first place, felt the need to defund ACORN specifically.

Article II Section 1 recites the oath to be taken by the President. Read it carefully and see if you note anything missing:

I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.

Did you catch it? Look again and see if you can see where the Constitution requires the President to say “So help me God.” Hmm. Given that we’re a supposed to be a Christian nation and all, doesn’t it surprise you that the reference to God isn’t there?

Article IV Section 1 also has an interesting little clause of interest to those who oppose gay marriage:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.

Query then, on the basis of the full faith and credit clause, how one state can choose which marriages recognized in another state will or will not be recognized? Similarly, Article IV Section 2 provides:

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

So if a citizen of Iowa or Massachusetts is entitled to the privilege of marriage, how is that impacted when that citizen moves to Alabama or Texas?

Those tea partiers who support laws that would allow states to nullify laws passed by Congress or opt out of certain federal laws (like healthcare reform) should recall this provision of Article VI:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

And for those who oppose the presence of Muslims in Congress or those tea partiers presently trying to oust the the Speaker of the House in Texas because he’s Jewish and not a conservative Christian, this provision from Article VI might be worth reading:

no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States

I can’t believe I need to recite the next provision, but Christine O’Donnell’s query during one of the Senate debates in October demonstrates that many people still don’t know what the First Amendment says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

And though the conservative activist judges on the Supreme Court disagree, it still seems to me that the Second Amendment does not grant a virtually unfettered right to 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.

Apparently, the entire first part of the Second Amendment is meaningless (or at least it is to those activist judges). Then again, those same activist judges seem to think that the unfettered influx of corporate money (including anonymous and even foreign money) into our political process is just fine, so go figure.

For those tea partiers who believe that warrantless wiretaps are acceptable, I’d remind them of the provisions of the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated …

Those who oppose birthright citizenship should re-read the first paragraph of the Fourteenth Amendment and think about why that provision was added in the first place. So too should supporters of Arizona’s anti-immigrant legislation, especially with regard to how it may impact US citizens. And so too should those who oppose gay marriage:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.

It is also worth recalling that our “perfect” Constitution – the one that allowed slavery – didn’t give women the right to vote until ratification of the Nineteenth Amendment in 1920!

Well, those are just some highlights. I obviously have not taken the time to go into the thorny details of some of the more complex provisions of the Constitution; law school professors and federal judges have filled thousands of volumes giving detailed analysis, explanation, and historical context.

But in light of some of the rhetoric (in particular the violent, eliminationist rhetoric, the state’s rights rhetoric, and the racist rhetoric) that we’ve heard from the Tea Party, perhaps reading the Constitution isn’t such a bad idea.

And just for the heck of it, why not go read it yourself? You might also want to read the Constitution of your state. You might be surprised at what you find (or don’t find).

Happy New Year!

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2 Comments:

At Saturday, April 30, 2011 8:32:00 AM , Anonymous Anonymous said...

The Tea Party is formed on one idea - to stop Federal bailouts of wealthy bankers. So, are you in favor of bailing out Goldman Sachs with tax money ?

And really, you should not be able to practice law after writing this:

"Article I Section 9 also provides that “No Bill of Attainder or ex post facto Law shall be passed”. This provision might be of interest to those in Congress who, on the basis of bad information in the first place, felt the need to defund ACORN specifically."

Do you even know what a Bill of Attainder is ? Acorn is the biggest source of voter fraud in the US...cutting off their funding is not only legal, it is imperative.

 
At Saturday, April 30, 2011 11:31:00 AM , Blogger MSWallack said...

Just curious why the need to hide behind the veil of anonymity?

If the Tea Party is about bailouts to wealthy bankers, why the focus on things like healthcare reform?

As to knowing what a bill of attainder is, yes I do know. Do you? You claim that ACORN (which no longer exists) "is the biggest source of voter fraud in the US". Can you point me to a single case of actual voter fraud against ACORN?

But you might look at efforts by the Republicans to disenfranchise voters.

 

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