Of Tea Parties and Original Intent: Everyone Has An Opinion On The Constitution...But Some Are Not as Equal as Others

Sometimes one has to pick a scab.

A question to my original intent, strict constructionist readers: Is the extension of "rights" to corporations as "people" under the Equal Protection Clause a perversion of the sacred cow that is "original intent?" Or is it in keeping with the framers' belief that corporations should have the protections afforded to people--in this case, special categories of protected persons?

In short: is that document a magical treatise to be read as the framers originally "intended" (warts and all) or is it more a set of guidelines and principles that are malleable and elastic?

The NY Times Week in Review section published a great complement to that perennial argument over the weekend that is worth reading in its entirety. Of note in the Times' piece is the following finding from Quinnipiac College's highly respected public opinion arm:

Surveys conducted by Quinnipiac University indicate that some 40 percent of Americans say the Supreme Court should employ originalism in interpreting the Constitution; slightly more say the court should take account of changing conditions. “You might think that questions about constitutional theory are an elite-driven idea,” Professor Persily said, “but people have opinions about this.”

A new study from Professor Persily and two colleagues, Jamal Greene and Stephen Ansolabehere, explored the political and cultural values of those who identified themselves as originalists. Such people “appear more likely than non-originalists to be white, male, older, less educated, Southern and religious,” the study found.

“They are less likely to favor abortion rights, affirmative action and marriage rights for same-sex couples, and more likely to favor torture and military detention of terrorism suspects and the death penalty. They are more likely to express morally traditionalist, hierarchical and libertarian cultural values.” The mechanisms for translating such popular understanding into actual constitutional law are varied. Over time, the Supreme Court’s personnel shifts with new appointments, and so may its thinking. Public opinion, many scholars say, cannot help but affect which cases the court accepts and how it decides them.

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What has always struck me about The Constitution is how it can be used for purposes both good and evil. One side can use it to support Secession and state's rights. Another can argue for expanded civil liberties using the same text. One can use the Constitution to argue that it is okay to torture people and that The President can "disappear" citizens on a whim, or that the Constitution supports limiting the rights of citizens to marry whom they choose. Others using the same document, can counter that rights should be respected in all venues, at all times, and ought not be subject to the popular will.

But as Redd Foxx famously mirrored in his "Wash Your Ass" routine, everyone has an opinion...



By implication, not all opinions are created equal, nor should they be given the same weight in our public discourse or law making. Ultimately, the juvenile approach offered by the "what would the framers do crowd"--where they try to magically divine what the framers would say in 2010 based on their readings of a document some 200 plus years old--speaks to the political genius of the Right and the Tea Party crowd on this and other issues.

How? The Right in its various forms have been able to craft a narrative in which they "own" The Constitution. Just as the Christian Right and the GOP were able to monopolize Jesus as a symbol for their political agenda (an irony if there ever was one), folks on the Left, progressives, and pragmatists have lost The Constitution. This surrender has been enabled by the following dynamic: research in cognitive psychology has shown that conservatives are more likely to respond to simple moral appeals, possess a binary worldview that orients itself around "evil doers" and "good guys," and are motivated by a fear of change in how they make political choices.

The sum effect of these factors is that the Right has a profound advantage in how it crafts popular political narratives around the meaning of The Constitution--with their dominance in talk radio and an exclusive network in Fox News--and how they disseminate them. Moreover, it is difficult to engage the Right and its populist wing on this issue (or any other) because in keeping with the meme that all opinions are created equal (regardless of fact, documentation, or scholarly consensus), there is a deep hostility towards expertise and/or expert knowledge.

Consequently, the truth is what the Right wing populist "intellectual," blogosphere, talking heads say it is on any given day because the know-nothing foot soldiers feel it to be true, and the phrases "I think," "I believe," or "I feel" are held as empirical realities. Thus, these "truths" are immune from rebuttal or critical engagement by conventional standards. Most pointedly in the rhetoric of the moment, those "experts" are cast out as "elitists" or "liberals" who dare to insert fact, history, or precedent into our political discourse. How arrogant those experts must appear with all their fancy book learning and reading when viewed through the lens of the Tea Party populists.

The question then becomes, how do reasonable folk reclaim this terrain? What does the reality based community do in the face of the Right wing populist assault on an enlightened public discourse? More generally, who owns The Constitution? And which set of values would see its best intent served most honorably and in the service of the common good?