Can Popular Constitutionalism Survive the Tea Party Movement?

Abstract

The Tea Party movement is easily recognizable as a nascent popular constitutionalist movement because it seeks to implement its constitutional vision using the tools of ordinary politics. Like many political movements that have succeeded in changing the understood meaning of the Constitution, including the civil rights movement, the feminist movement, and the gun rights movement, the Tea Party movement has sought to mobilize the public to demand the implementation of its constitutional vision. That constitutional vision is characterized by a broad conception of American exceptionalism and a narrow conception of what America stands for, what ideas and policies are American, and who the "real Americans" are. In Tea Party rhetoric, the Constitution is a label for the fundamental principles that the movement embraces while all other values and policies are regarded as dangerously un-American.

This Essay takes the first steps toward an assessment of popular constitutionalism in light of the Tea Party movement and suggests that the Tea Party movement calls into question one of the central claims of popular constitutionalism, the assertion that popular engagement with the Constitution and control over constitutional interpretation promote democratic values and perhaps may be necessary for democratic legitimacy. As the Tea Party movement illustrates, political movements can mobilize the public around shared constitutional commitments for the purpose of foreclosing popular democracy. The Tea Party movement seeks to close off debate over policy choices understood by many to be available through ordinary politics and employs rhetoric that demonizes the movement’s opponents as un-American and therefore outside the bounds of American politics. The Tea Party movement thus suggests that the relationship between popular constitutionalism and popular democracy is far from clear.