Amy Coney Barrett, and her Originalism: Why Individual Rights Lose

 Supreme Court Justice nominee Amy Coney Barrett is a threat to many constitutional precedents,

including Roe v. Wade (abortion rights), National Federation of Business v. Sebelius, (Obamacare), and Obergefell v. Hodges (marriage equality).  It may not simply be her ideology or pre-judged opinions that pose the problem, it is her constitutional interpretive method of Originalism that is the issue.

The foundation of the US legal system is strongly based on the concept of legal precedent.  Judges when interpreting the law or the Constitution are supposed to respect past decisions when there are similar facts.  “Like cases are to be the same” is the rule.  Respect for legal precedent is founded on the idea of stability, consistently, and the belief that people have relied on the law to operate in a certain way and it should not change unexpectedly.

Departure from precedent is supposed to be an exception and not a rule.  When it comes to constitutional precedent, the Supreme Court has only reversed itself 147 times in history.  Historically the justification for reversing constitution precedent was that the prior decision  proved no longer to be workable or that  the conditions under which it was decided had so changed that the factual basis for it had been undermined.  Precedent could also be rejected if new facts pointed to the lack of viability of the old decision.  Deference to constitutional precedent historically was firm even though the Court has said it should not be given as much respect for statutory precedent because the latter would be easier for Congress to overturn or overturn if the Court made a mistake.

Up until the Warren court of the 1950s and 1960s, rarely were past constitutional law decisions by the Supreme Court reversed by a later decision.  From 1788 until 1953 there were a total of 49 reversals.  Since 1953, 98 reversals, with 76 coming since Richard Nixon sought to push the Court ideologically in a conservative direction.  The big change came in 1986 when William Rehnquist became Chief Justice and Antonin Scalia an Associate Justice.  

Scalia especially brought to the Court his theory of constitutional interpretation called Originalism.  This theory said that in order to limit the discretion of judges in making policy or substituting their own opinions for that of elected officials, they should interpret the Constitution in terms of the intent of the Framers.  Intent could be ascertained by looking at the plain language of Constitution and dictionary definitions of terms used in it by the Framers at the time they wrote.  Historical documents, such as the Federalist Papers, could also be deployed.  For Justices such as Scalia, Originalism guaranteed the Constitution and Bill of  Rights had their meanings anchored in time, providing stability and certainty.

While elegant in theory, in practice Originalism is flawed in  many ways.  It assumes the Framers were of one mind when they drafted the Constitution.  It naively believes that one can reconstruct the past accurately to ascertain historical intentions and apply them to a world they could not envision.  It falsely assumes a theory of history no longer accepted by historians that one can simply recount the past by “telling it like it was.”  It overlooks that many of the Framers were slaveholders and the original document embodied believes and assumptions most of us now reject. But the major problem is that Originalism  does two damaging things:  One it ignores rights.  Two, it threatens constitutional precedent.

Antonin Scalia’s Originalism was not politically neutral.  Scalia was conservative, everyone knew that.  In my books and many articles on him I demonstrated a pattern to his decisions based on the issue or the litigant.  Others who study the Court and Justices have shown that too.  One theory is that Originalism is simply a tool to mask or justify conservative outcomes. But alternatively, Originalism locks the Constitution in time to 1787 when it was drafted. This was a time when, as former Justice Thurgood Marshall once said, the first three words of the Constitution “We the people” excluded women, people of color, the poor, and those who were not Protestant.  The concept of rights and who had a  voice in the American republic has evolved.  Originalism ignores this.  It freezes rights in time, ignoring  how,  to paraphrase what the Supreme Court once said in Trop v Dulles that the law’s meaning must be looked at through the “evolving standards of decency that mark the progress of a maturing society.”  Originalism ignores this evolving decency, how our conception of what free speech, privacy, or  equality means have evolved over time, and what it means to be a democratic republic.   When Originalism confronts modern rights, the latter generally lose.

But an equally fatal defect of Originalism is found in how it fails to understand the role of precedent in the law.  There may be an original Constitution that had some meaning, but over time  it has been interpretated, creating precedents to guide judicial reasoning.  The meaning of the Constitution and the Bill of Rights includes these precedents.  Since the 1980s, and especially now under the Roberts Court, the Originalists, including Justices Thomas and Alito as seen recently in a case where they expressed disagreement with the way Obergefell was decided, have  expanded the grounds for the overrule of precedent.  They repeatedly quote the phrase “precedent is not an inexorable command” and that if a decision were simply wrong or badly  or insufficiently reasoned, that is grounds to overrule it.  Originalism ignores how the law evolves and grows, and it runs roughshod on the settled expectations of what the law has come to mean.  It rips the law out of its contemporary context and meaning.

Amy Coney Barrett is an Originalist, a student of Scalia.  No matter what assurances she gave to the Senate about remaining open-minded to precedents,  either her past comments on the law, her legal opinions in cases, her ideology, or her interpretive method question her fidelity to precedent. Like her mentor she argued in a 2013 Texas Law Review Article that precedent need not always be followed and in her list of “superprecedents”—supposedly cases that could never be overruled—she excluded Roe v. Wade.  By her own analysis respect for precedent is a self-imposed restraint on the Court, not something they have to necessarily follow, and her Originalism, like that of her mentor Scalia, is either a façade for her political views or a method inherently hostile to rights.

 

Trump is not the Pope and it's not the Middle Ages Anymore

            President Trump orders governors to open up the churches.  Churches defy governors and seek to open.  Someone needs to remind both the president and religious institutions that the Middle Ages are over and Modernity won.

            President Trump and many religious institutions are pushing arguments reminiscent of those found in the Medieval Christian Europe where secular authority was subservient to the Pope and Church Law.  Then the Pope claimed that he received his authority from God and princes and secular governments received their authority from the Church.  Myths such as the Donation of Constantine, Pope Gelasius I’s Doctrine of Two Swords, or the biblical injunction “ "Render to Caesar the things that are Caesar's; and to God the things that are God's" (Romans 13:1) endorsed the supremacy of Church over State.  The Church excommunicated disobedient rulers, and in 1076 King Henry IV suffered in snow on the road to Canossa, seeking absolution from Pope Gregory VII.  Those were the glory days for the Christian church.

            Yet beginning with Edict of Nantes (1598), the English Glorious Revolution of 1688, and John Locke’s A Letter Concerning Toleration, (1689), the hallmark of Modernity in the West has both been the separation of church and state and equally important, the primacy of secularism and limits on the ability of religious institutions to enforce their doctrines with civil implications and penalty.  Neither should the government enforce religious doctrine nor religion impress itself upon anyone beyond its membership.  This balance is captured in the First Amendment to the US Constitution which guarantees free exercise of religion but also bars the government establishment of religion.

            Individual rights are important, but as former Supreme Justice Scalia points out in District of Columbia v. Heller, no rights, be that in the Second or First Amendment, are unlimited (595).  There may be an individual right to own guns but the courts have ruled that felons and minors may be denied a right to possess or use, and the types of  arms may be regulated.  Free speech is a cornerstone of  a free society, but it does not entail  the right to advocate imminent lawless behavior and engage in true threats to others that threaten their health or safety. The same is true for the free exercise of religion.

            In general, individual rights are subject to limits under extraordinary circumstances.  To limit a right (not eliminate it ) the government must show a compelling governmental interest that is narrowly tailored and which is the least restrictive means of securing that interest.  Phrased otherwise, the government  must show a reason so important to limit a right and that there is no other way to accomplish it except by the action it  wishes to take.  This is called the strict scrutiny test. Restricting rights is supposed to be difficult and when strict scrutiny is employed, as legal scholar Gerald Gunther once said,  “it is often fatal in fact,” meaning seldom do or should the government win.

            Over time the Supreme Court has rightfully struck down many laws regulating free exercise of religion.  But it has held that neutral regulations that do not specifically target religion may be upheld.  These include  mandatory vaccination laws, required medical treatment for minors, laws regulating polygamy and illegal acts, and the use of illegal drugs.   Moreover, while Title VII of the 1964 Civil Rights Act authorizes churches, synagogues, and mosques exemption from the law's prohibition on religious hiring discrimination when it comes to hiring for their own organization,  the law did not give them carte blanc to discriminate.  Nor has the Court ruled that there is a general religious exemption from civil rights laws, and it has ruled that giving religious organizations a veto over some local laws is unconstitutional. These are all cases where the practice of religion may impact the health or safety of others and in some cases neutral secular laws promoting the health, safety, and welfare of the people prevail.  Wrongly the Court has opened up the ability of religious belief to impact the health and rights of women in  Burwell v Hobby Lobby, emboldening  some to think there  is a broad right to defy laws to protect the public.

            This is the situation here when it comes to religious institutions claiming  veto over  laws limiting the scope of religious services during a Covid-19 pandemic.  These laws are not specifically targeting religion and there are not banning religious services from occurring.  They are reasonable laws aiming to protect the public.  Effectively this is what the Ninth Circuit Court of Appeals said in refusing to enjoin a California executive order restricting religious services during the pandemic.

            In Minnesota and across the country churches and other religious institutions are asserting their right to defy the government and open.     This is not the same as the historical role of Christian  civil disobedience where the order from secular authority was to disobey God or a law clearly in violation of God’s laws.  Covid-19 restricts are not prescribing religious orthodoxy, they aim to prevent public harm.  Those who assert a religious “get of jail free” card to do whatever they want  wrongly seem to think that they can live by their own set of laws and rules.  For those who fear Sharia law as overriding secular US law, the same  principle applies here. Government cannot target religious practice, and religion does not have a free pass from all government regulation.

            The Middle Ages was all about asserting religious authority over secular institutions.    Last I knew, Modernity won.

Constitution 7, Trump Administration 0.

But it is still early in the first quarter and we know what happened to the
Atlanta Falcons in the Super Bowl.
It was no surprise at all that Trump lost in the Ninth Circuit Court of Appeals when it came to his travel ban.  Even though the decision was not on the merits but only on the stay, the Court indicated that the challengers were more than likely to win on the merits when it came to two constitutional claims–a Fifth Amendment Due Process claim regarding revocation of travel privileges without hearings, and a First Amendment Freedom of Religion claim.  The Trump administration lost because it was sloppy.  The executive order–as with most of them–are more showmanship than substance.  His Administration is full of a bunch of amateurs who do not know how government works and they think they can flout the law and rules and do whatever they want.  And Trump himself is unwilling to listen and take advice from those who k ow their way around Washington.
Trump’s performance after three weeks is a reminder of what I have been arguing for weeks.  There is this amazing document out there called the Constitution and the Bill of Rights that has nifty things such as checks and balances, separation of powers, due process, equal protection, federalism, and an independent judiciary.  These structures actually do work and mean something.  They were meant to frustrate rapid political change, to make it difficult for a–as James Madison described in Federalist Paper number 10: “[M]majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”
For all those liberals or conservatives who moaned that they could not get rapid or significant political reform accomplished, in part the reason was the structural design of the Constitution meant to prevent that. Thus, for the Trumps and Jason Lewis types of the world who whine that politics in the United States is played between the 40 yard lines, guess what?  It was designed to do just that.  We may live in a time of polarization where many want to go for the Hail Mary pass but the reality is that in politics as in football, such plays seldom work.
But having said all the above, remember it is early still in the first quarter and lots can happen in this political game.  There will be many forces converging that will tame Trump.  The foreign policy establishment that is so powerful in Washington is already constraining Trump when it comes to China.  Week three into his term and the Iran Nuclear deal is not torn up.  No one sees the first brick being laid along the Mexican border.   Free markets and returns on investment will largely doom many of the ideas to bring back coal and kill off renewable energy.  
Yet complacency is a real danger, and Democrats are hobbled by it.  Across the country one hears repeated talk of impeachment, or of the idea that Trump will be so inept that he will bring himself and Republicans down in 2018 and 2020.   Thus, the complacency is the idea that Trump is so bad voters will return to their senses and vote for Democrats and the DFL in two or four years.   One might as well wish for a pony.  This was Clinton’s strategy in 2016. Remember, in part she lost because she had no narrative, no message.  She assumed voters were hers.  The Democrats thought their policies for the last eight if not more years were fine and that they did not need to do anything wrong.   If only it were not for the FBI Director Comey letter or some other freak occurrence such as the Electoral College, she would be president.  She was not the problem, the message was not the problem, the strategy was not the problem, it was someone, somebody, or something else that was to blame.  That seems to be the message of the 2017   Minnesota DFL listening tour according to my friends who have attended.  It is less listening and more about what we were right and the tide is now turning to the DFL and Democratic party advantage.
The reality is that  Democratic party policies, narratives, and strategies,  for the last generation were part of the problem.  From Bill Clinton to Barack Obama the Democrats failed to treat seriously the needs of the working class.  The bailed out the banks but ignored the homeowners after the crash of 2008.  Obama never moved on minimum wage when he could, he failed to push for the Employee Free Choice Act to help the labor unions, he did nothing to address the role of money in politics.  Democrats across the country supported tax cuts that favored the rich.  No, they did not support the wholesale attack on the welfare state but neither did they endorse a major restructuring of it to improve it.  Instead, they went along with the thousand nicks and cuts that undermined it.
Obama and Clinton left the Democratic Party in the weakest position it has been in since the 1920s.  Hoping to run out the clock when it is only in the first quarter is not a viable game plan.  Yes, the Constitution has won and it should be recognized that it sets the rules for the game of American  politics.  But Democrats if they are to be successful, they need to have a real team with a real game plan and strategy beyond one that assumes that Trump and the republicans will simply continue to fumble or commit fouls.

NSA Spying and the Constitution: Why Obama does not get it

“[N]othing that I have learned since indicated that our intelligence community has sought to violate the law or is cavalier about the civil liberties of their fellow citizens.”
    –Barack Obama, January 17, 2014

    Barack Obama simply misses the point.
    In a windy speech seeking to address NSA spying on American citizens and foreign national, including our allies, Obama’s speech amounted to nothing more than “trust the government to do the right thing and protect your rights.”  Such a sentiment completely misses the point about why we have a Constitution and in particular, the Fourth Amendment and the demands that searches be conducted only upon probable cause.
    Let’s first start with why the speech.  The speech did not take place because the president was genuinely concerned or worried about the threat to individual liberties associated with the NSA intelligence gathering of our phone, e-mail and other metadata.  Instead, the only reason the speech took place was because of the disclosures by Edward Snowden.  Had those leaks not occurred it seems unlikely that the public would have known about the NSA spying.  After all, the FISA Court that issues warrants to allow for activity like this is a secret court–no different than the old Star Chamber of the British monarchy.  One can debate whether Snowden is a hero or a criminal but the truth is that he revealed something that the public would not have known about.
    As a result of Snowden we have come to learn of the extensive reach of the NSA in terms of spying on Americans and others across the world. We have also come to learn from a few scattered court decisions issued that the NSA has not always complied with court warrants, often exceeding them or acting way beyond their scope.  All in the interest in keeping us safe and secure from terrorism.  But Snowden’s disclosures have forced a public debate, pushing the president into the position of having to form a task force to reevaluate they NSA activity.  His speech on January 17, was a response.
    To say the least, Obama was unapologetic if not defiant.  He first appealed to fear and the threats to our security that terrorism poses and then he defended in a sanitized version how effective our intelligence gathering has been to protect us throughout history.  The ends I guess justify the means.
    But then Obama outlines the changes to the spying program.  Frankly, there were no real substantive changes.  The NSA will continue gathering metadata and will not stop monitoring calls and e-mails.  He does call for some minor changes in the FISA court but they are not really clear what they will be.  The major change is to say that the NSA cannot store the metadata anymore.  Someone else will?  But whom?  Private vendors, like the one who Snowden worked for?  Or companies like Target and Neiman Marcus?  Whether in private or public hands the data still exists, is still being examined, and still constitutes spying.
    Moreover, Obama misses other fundamental issues.  First, the issue is not whether the data has kept us safe and secure.  The issue is about following the law.  Rarely do I echo Rand Paul but he got it fundamentally right on CNN.  If we suspect someone is doing something illegal then get a search warrant.  The fourth Amendment requires particular suspicion to do searches–it does not allow for general fishing trips to look for information or to round up the usual suspects.  It’s not hard to get search warrants–I did it when I worked in government.
    Morever, the security versus liberty dichotomy is a false one.  When are only secure when our liberty is protected.  Additionally, there is no evidence that this wholesale spying is efficient or produces real intelligence.  It is overreach.  Use real intelligence to focus on real suspects.
    Third, to capitulate on the Fourth Amendment means we have lost.    Immediately after the events of 9/11 President Bush declared: “The object of terrorism is to try to force us to change our way of life, is to force us to retreat, is to force us to be what we're not. And that's--they're going to fail. They're simply going to fail.”  Bush was correct in saying what he did even though he would fail to honor them.  We fail as a country if we fail to respect our Constitution and Bill of Rights.  We are the “shining city on the hill” because we respect and do not abuse rights.  That is why stories about spying and torture are so bad.
    But finally, Obama misses it because in the end he speech comes down to no more than simply “trust the government to do the right thing.”  Tell that to James Madison and the constitutional framers.  Constitutions and bills of rights are written because we fundamentally should not always trust the government.  Both are written to restrain the government.  This is what Obama misses.
    I am not conspiracy theorist.  It was a single shooter in Dallas in 1963.  But what should be skeptical about the NSA spying.  We are told they are not listening to our phone conversations or looking at the content of our e-mails?  Should we believe them?  Remember Nixon and the extent of his spying and his assertions that we should trust the president when it comes to national security?
    Obama missed a great opportunity.  It was a chance to do what candidate Obama promised.  It was a chance to also reign in private business data gathering.  It was a change to move us to a new discussion about privacy and rights.  But he failed to do that and instead simply missed the point about spying.

Obama's Constitution

            Barack Obama’s constitutionalism is not quite what anyone would have expected.  Far from embracing bold liberal notions of the Constitution and the Bill of Rights, much of his legal philosophy seems at home with his predecessor George Bush and Republicans.

            Ostensibly a liberal Democrat, one would have thought that Barack Obama would have been a civil libertarian, respectful of individual rights.  One would have also expected that he would have sought to use national power to its fullest to fulfill his agenda.  As a lawyer and former constitutional law professor, the belief was that he understood the law and would see how moving quickly and aggressively to fill the federal bench with his judicial nominees would be critical to securing his legal agenda and undoing the legal legacy that George Bush left.

            Such expectations were nurtured by presidential candidate Obama.  He sharply criticized the Bush administration for its support of torture and disregard for international law.  He promised to close Guantanamo Bay, and otherwise end the illegal operations of the war on terror and the presidential excesses of his predecessor.  Yet Obama has not turned out to be a constitutional liberal.

            To his credit, in the opening days of his presidency Obama did move to undo many of the practices of the Bush administration that he campaigned against.  He repealed legal opinions supporting torture and in his inaugural speech he committed his administration to transferring prisoners out of Gitmo and to closing the facility.  But Congress fought him on this initiative and Republicans have successfully stalled or filibustered judicial and other nominees.  But even accepting both as excuses, Obama’s constitutionalism is surprising.

            The Obama administration insists that it is within its constitutional authority to use drones to kill American citizens and to intercept and track telephone calls and internet traffic under the Foreign Intelligence Surveillance Act and through the NSA Prism program.  Obama administration legal memos, some of which have yet to come to light, so far seem to rely upon the same assertions  about extra-constitutional presidential power as commander-in-chief or upon the same congressional ascent under the post-9/11 Authorization to Use Military Force that Bush invoked. The legal memo on drones makes the same legal contortions about presidential power that the John Yoo memo did when it came to torture.  Obama has used these legal rationales and the most extensive authority given to him under the Patriot Act and FISA to justify policies disregarding basic civil rights and liberties.

            His administration justifies the killing of American citizens without proof of guilt in court.  There is no regard to the Fourth Amendment rights against use of excessive force, no due process to contest a decision to make unilateral execution decisions.  His snooping on American citizens is done without warrant, or at least one with proof of particularized suspicion as required under the Fourth Amendment.  His administration's initial refusal to read the Boston Marathon Bomber his Miranda rights exploited a questionable legal loophole and ignored the Fifth Amendment.  And do not forget that the IRS targeting of political groups is also a violation of the First Amendment.

            But additionally the Obama administration has rode roughshod over many other parts of the Constitution.  Where is the respect for the First Amendment freedom of the press when comes to getting secret warrants to search reporters telephone conversations because they reported on news embarrassing to the Obama Administration?  Or where is the respect for First Amendment freedom of speech when it comes to one of the most aggressive administrations on record when it comes to prosecuting leaks and whistleblowers?

            But his constitutional contempt is matched by timidity.  Obama now supports same-sex marriage, but only as he was beginning to run for a second term in office and when the tide of public opinion had apparently shifted on the subject.  It took years for the Obama administration to reach the conclusion that don’t ask, don’t tell was unconstitutional but he never did anything to fight its enforcement.  The same with DOMA–he did eventually argue that it was unconstitutional but continued to enforce the law.  Even in his administration’s arguments before the Supreme Court, Obama has never embraced a view of the Equal Protection clause that fully argues that bans on same-sex marriage are unconstitutional. Nor have we seen Obama argue that the death penalty is unconstitutional, and we have not seen him take an aggressive stance in Court to argue that the Second Amendment decisions holding for an individual right to bear arms were wrong and should be reversed.

            Even with the Affordable Care Act–his signature issue–he has failed to act boldly.  His central justification for its constitutionality rested on the Commerce clause–an argument the Supreme Court ultimately rejected.   In passing the Act Obama capitulated on abortion rights and since its passage has failed to push aggressively on contraception, including until recently his refusal to go along with allowing women under 18 the right to purchase the morning after pill.  It took a federal court ruling his policy to be arbitrary and capricious to get him to change his mind.

            Finally, the Obama administration has moved slowly on judicial appointments, generally eschewing efforts to challenge Senate Republicans to reject his nominees who, for the most part, have been centrists and not liberals.

            Obama’s Constitution is hardly liberal.  It is supportive of strong presidential power resting upon dubious constitutional claims of unilateral authority to act.  It is a constitutionalism devoid of serious respect for individual rights, supportive of the national security state, and surveillance ahead of privacy.  It is a constitutionalism not of the kind one would have expected from him, but instead one that bears more resemblance to that of George Bush than it does of the liberal Democrat some thought he was.

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.