Tea Party Constitutionalism: What "original intent" would look like

For those interested in thoughts about the Tea Party and the Constitution, take a look at my piece in Salon (13 February, 2011) entitled What "original intent" would look like.

Here is the piece.

With reverence and awe, Michele Bachmann and the Tea Party pay homage to the original Constitution and framers who drafted the document in 1787. The House of Representatives, in a nod to them, began its session this year by reading it. Bachmann even brought Antonin Scalia to a seminar on the Constitution for members of Congress, where the Supreme Court justice instructed members to read the Federalist Papers and follow the framers' original intent. Moreover, many of the Tea Party's political positions, such as opposition to President Obama's healthcare reform program, are rooted in their adherence to the original document.

But what if they actually got their way? If a Tea Party constitutional reading suddenly took sway and we returned to the original document as conceived, what would the American republic look like? Much to the surprise of Bachmann and others, there wouldn't be that much freedom and democracy.

To begin with, the original document was silent on the right to vote. Voting rights were largely a matter of state law, and in 1787 most states limited the franchise to white, male, Protestant property owners, age 21 or older. The original Constitution did not allow for direct popular voting for president or the United States Senate, and there was no clear language even allowing for voting for members of the House of Representatives. It took the 17th Amendment, adopted in 1913, to allow for people to vote for their senators (an amendment many Tea Party activists wish to repeal), and the Supreme Court, in two landmark cases in the 20th century, found that the right to vote for House members and in state and local elections was located in Article I, Section 2 of the Constitution and in the First Amendment.

Today there is still no right to vote directly for president, and it's only by the whim of state legislatures that there is a popular vote for that office. Had an original or plain reading of the Constitution been employed along the lines they advocate, many Tea Party activists would not have been able to vote last November. Finally, the original Constitution was silent on the right of women to vote, and states did deny them the franchise. It wasn't until 1920, with the adoption of the 19th Amendment, that women were given the right to vote. Without this amendment, there is no guarantee that Michele Bachmann would ever have been allowed to vote, let alone run for office.

Continue reading
The original Constitution didn't include a Bill of Rights. Alexander Hamilton, one of the framers and authors of the Federalist Papers, argued against it. The Bill of Rights protects many rights the Tea Party considers hallowed, such as the freedom of speech and assembly and a right to bear arms. Lacking a Bill of Rights, these freedoms wouldn't be protected against limitation by the national government. Moreover, the Tenth Amendment, which declares that "powers not delegated to the United States by the Constitution … are reserved to the states," would not be the law of the land; thus, there would potentially be no limits on what the national government could do.

But even if we consider the Bill of Rights, which was adopted in 1791, to be part of the original Constitution, there are still many limits on its use. Most importantly, as written, the Bill of Rights limited only national power -- not state power. Notice how the First Amendment begins by declaring, "Congress shall make no law … " The most important provisions of the Bill of Rights, as Justice John Marshall stated in the 1833 case Barron v. Baltimore, weren't meant to be a limit on state power. In that case, the Court ruled that a state could take an owner's property through eminent domain without compensating him.

Subscribe to an original intent reading of the Constitution and states are free to disregard individual rights, including free speech, property, religion and others. States did just that in the early years of the Republic and into the 20th century before the Supreme Court used the 14th Amendment to apply Bill of Rights provisions to the states. Most recently, the Supreme Court (with Scalia supporting it) used this incorporation tactic to apply the Second Amendment right to bear arms to states. A Tea Party constitutionalist could not have done this. So much for states as protectors of individual freedom.

And then there's the matter of slavery. Article I, Section 1 of the original Constitution permitted slavery and the slave trade. It referred to "free persons" and those "bound to service." For the purposes of census, apportionment and taxation, Indians and other persons would only be counted as three-fifths of whites. Slavery did not end until the Emancipation Proclamation by Abraham Lincoln in 1863 and the adoption of the 13th Amendment in 1865. The original Constitution lacked an equal protection clause, which bans discrimination. It took the 14th Amendment in 1868 and a Supreme Court decision to create it. Lacking this clause, states were free to discriminate, and they regularly did via segregation laws.

Judicial review, or the power of the courts to declare laws unconstitutional, also wouldn't be permitted under an original intent reading. Tea Party constitutionalists now argue that the courts legislate from the bench when exercising this power, but it was the power of judicial review that made it possible just recently for two federal district court judges to declare the individual mandate in "ObamaCare" unconstitutional.

But nowhere in the original Constitution does it say that the federal courts have the power of judicial review. Alexander Hamilton in the Federalist Papers suggests that the federal court has this power, but it wasn't until 1803 that the Supreme Court actually ruled that this power existed. Hence, a contradiction: Hamilton, a constitutional framer and author of the beloved Federalist Papers, asserts that a power that is not explicitly written in the Constitution exists and a court rules in his favor -- and then, all these years later, Tea Party constitutionalists use that power to invalidate a federal healthcare law on the basis that it violates the Constitution!

Tea Party members say healthcare should be done at the state level. If so, states like Massachusetts have far more authority to mandate individual coverage than does the federal government. The main issue regarding "ObamaCare's" constitutionality is whether the Commerce Clause -- Article I, section 8, clause 3 -- gives Congress the power to mandate that individuals purchase insurance. The Supreme Court will ultimately rule on this. But there is no question that states using what is called their police power authority -- the ability to legislate for the health, safety and welfare of their people -- could adopt an individual mandate.

And let's not forget Alexander Hamilton, who argued against the need for a bill of rights and in favor of judicial review. The famous "Report on Manufactures" and "Report on Public Credit" he prepared as George Washington's treasury secretary argued for an expansive federal government role in assisting the economy -- hardly something the Tea Party constitutionalist would endorse.

It should be clear that many of the liberties and rights today's Tea Partiers demand and benefit from just didn't exist in the original form of the Constitution. It took many amendments and clarification from the courts to secure them. On top of that, if the ideal the Tea Party espouses ever was realized, it would just mean the states would have more authority to suppress rights.

Why Vote. . .and How?

Growing up in New York a wonderful woman next door turned to me on Election Day in the 1960s and advised me: "Don't vote, it only encourages them to run!" This advice, from an 80 year old plus woman, perhaps under the influence of whiskey, expressed dissatisfaction with politicans and candidates whom she saw as narrow-minded and petty.

I am reminded of her as I think about the looming Election Day this Tuesday. Many of us will render our choices based on fear, self-interest, anger, or who knows what. None of those reasons should guide our voting choices. We can do better than that.

Tom Horner, the Independence Party candidate for Minnesota governor, is haunted by the wasted vote syndrome. He should not be. Nor should any other candidate for office who is considered a longshot, such as Jim Meffert in Minnesota or a Charlie Crist in Florida. Individuals should select their first choice–vote your hope nor your fears–as the saying goes, regardless of whether the choice is Horner, Emmer, or Dayton for governor, or another candidate for another office.

But the first choice of whom to vote for should be more than simply casting a ballot out of anger, self-interest, or partisanship. It should be a vote for our collective future, not simply a private preference. Voting is a private act, but it should also promote a public good.

Voting: A Tale of Two Presidents
What do I mean by saying voting should promote a public good? Political scientists write about the strategy and reasons for voting. Some say we vote based on partisan preferences or affiliation. Others contend it is premised on looking backward, or maybe to the future, or based on economics (“It’s the economy, stupid” as James Carville would say). All of these theories have descriptive cogency. But voting should also have a normative or ethical component.

There are good reasons for why to vote a particular way and there are bad reasons. The worst in my opinion was launched 30 years ago with Ronald Reagan who closed out his campaign by asking voters “If they were better off now than four years ago.” This mantra propelled narrow self-interested greed into American politics, asking voters only to consider their own selfishness when they vote. The path from this Reagan quote to Gordon Geckos’ (of the movie Wall Street) “Greed is good” is direct and short.

The best reason or motive to vote? It came from another president in my lifetime–John Kennedy. It was not an election slogan or gimmick but the most famous call to duty from his inaugural address in 1961: “Ask not what your country can do for you but what you can do for your country.” It was a call to what is noble not base, to the public good and not the private interest. It was a call to look beyond partisanship to what is best for all of us.

JFK’s call sounds quaint in the era of self-interested partisanship. But it is precisely the sentiment that needs to guide voters this year.

What is a Wasted Vote?
As you ponder your voting choices prior to Tuesday, think about your choices and reasons to vote.

Vote not as a Democrat, Republican, Independent, or something else. Vote as an American or Minnesotan.

Vote not on the basis of partisanship but on what is in the best interest of the country or the state.

Vote not on the basis of narrow self-interest but what is in the collective public interest of us all.

Vote not on the basis of simplistic attack ads and 10 second sound bites but with a sense of realism. Solutions to our collective problems are not simple and are not rooted in blaming "those people."

Vote not on the basis of promises that seem too good to be true but on what is realistic and seems possible.

Vote not on the basis of whether you are now better off than four years ago but ask how your choice will improve our state or country four years form now.

Vote not because you want to freeze the hands of time in some halcyon mythic time of the past in order to take back your country. Recognize that the country belongs to all of us, but especially to a multi-cultural, multi-racial future where we are all in it together.

Vote for a world that will be better for your children, not just your bank account.

Remember, there are only two types of wasted votes: Those not cast and those where you vote for your second choice. Vote for the candidate of your choice, but make sure your choice is what will promote the best interests of us all.

Political scientists like me make predictions based on patterns we have discovered. Prove me wrong and vote for what is best for us all, and make that your first choice.

Election Day Registration: Debunking the Myth of Voter Fraud

Voter turnout is again an issue with the coming 2010 elections. With midterm elections producing turnouts dramatically lower than in presidential election years, some argue for election day registration (EDR).

Advocates for this point out that seven states–Idaho, Iowa, Maine, Minnesota, New Hampshire, Wisconsin, and Wyoming–permit EDR, with North Dakota not even requiring registration.

EDR critics raise the specter of voter fraud, contending that it would affect election outcomes. Even though there is no evidence that voter fraud is rampant or has changed the outcome of any election in a EDR state, claims persist.
The most recent salvo trumpeting the myth of voter fraud is a July Minnesota Majority report. They allege that illegal felon voting may have cost Norm Coleman to lose his senate seat to Al Franken. The Minnesota Majority argues that 1,400 felons may have voted illegally in the 2008 Minnesota elections and they have forwarded these names on to county attorneys for investigation. Republican Governor Tim Pawlenty commented on this report, echoing that illegal felon voting may account for Franken’s 312 voter victory over Coleman.

Does the Minnesota Majority report stand up to scrutiny? Hardly.

First, think about who makes up the Minnesota Majority. They are an ultra-conservative partisan political group that is a pro-property rights, pro-gun, anti-choice, anti gay, anti-immigrant, anti-sex education, and global warming denying organization. They are hardly politically neutral. They have repeatedly made unsubstantiated accusations about voter fraud in Minnesota, only to have their claims dismissed when critically examined.

Second, their initial July numbers asserting illegal ex-felon voting have been reduced based upon preliminary review by voting officials and county attorneys. That initial 1,400 has been whittled down to a few hundred–hardly enough to change the outcome of the race. Second, the Minnesota Majority did not investigate or examine whether any of the alleged voting occurred as a result of ex-felons who had their voting rights restored. Ex-felons in Minnesota are eligible to have voting rights restored upon leaving prison and that may have occurred here.

Third, the Minnesota Majority makes the assumption that any illegal voting that occurred favored Franken over Coleman. Why or how can one assume this? The political science literature indicates that, in general, people who are more affluent and better educated are more likely to vote than the poor and less well educated. Immediately this raises a series of questions regarding who exactly are the ex-felons that supposedly voted? Clearly the Minnesota Majority assumes that these individuals are more poor, uneducated, and therefore more liberal and thus voted for Franken over Coleman. Yet voting studies research suggests that this demographic is much less likely to vote.

Instead, think about who the felon voters might have been. Perhaps the most famous felon in Minnesota right now is Tom Petters–a middle aged affluent white male convicted of multiple counts of mail and wire fraud connected to a $3.5 billion Ponzi scheme he ran. He is a felon and, assuming he could vote, would he have voted for Franken? Probably not.

Moreover, think about all the other Wall Street felons from around the country–Jeffrey Skilling and Kenneth Lay of Enron, or Bernie Ebbers from Worldcom–if they could have voted in Minnesota in 2008 would they have voted for Franken? No. The odds are they would have voted for Coleman. Felons include white-collar criminals, drunk drivers, wife beaters, and middle class cocaine users. None of them fit the bill of those voting for Franken. We do not know the mix of the felons who allegedly voted in 2008. It is equally possible that if they voted they did so for Coleman, making the race even closer than it should have been.

Finally, the percentage of the vote of among illegal voters had to unrealistically favor Franken as opposed to Coleman to overcome the 312 vote victory. The Minnesota Majority states that perhaps up to 1,000 cases are possible for prosecution (although county attorneys have already cut this figure to one-third, and more, if not all will be dismissed). To overcome the 312 margin of victory, one would have to assume that of this 1,000, at least 656 votes went for Franken. In a race where Franken only received 43% of the popular vote, to assume he received nearly 2/3 of this vote is speculative.

Overall, keep in mind that county attorneys have not indicted anyone and no one has been convicted on voter fraud. The assertions of the Minnesota Majority are simply that, just unsubstantiated partisan assertions made by a group that is committed to the belief that if it denies enough people the right to vote they can successfully secure their agenda.