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Popular Originalism? The Tea Party Movement and Constitutional Theory

27 Pages Posted: 10 Aug 2011  

Rebecca E. Zietlow

University of Toledo College of Law

Date Written: August 5, 2011

Abstract

The United States Constitution is currently the subject of a heated political debate. Tea Party activists have invoked the constitution as the foundation of their conservative political philosophy. These activists are engaged in “popular originalism,” using popular constitutionalism, constitutional interpretation outside of the courts, to invoke originalism as constitutional method. The Tea Party movement thus highlights the relationship between originalism and popular constitutionalism, two prominent trends in constitutional theory. Both fields study legal history to illuminate constitutional meaning, but originalists and popular constitutionalists draw diverging lessons from that history. Originalists look to history to determine fixed original meaning, which they hold to be binding on contemporary interpreters regardless of subsequent historical or political developments. Popular constitutionalists study how constitutional interpretation has been influenced by historical developments, and explore the use of constitutional theory to bolster constitutional arguments. This essay explores the convergence and divergence between originalism and popular constitutionalism, and questions whether popular originalism is feasible given originalists’ fidelity to the original text. The essay concludes by asking what popular originalism can teach about us constitutional interpretation and democracy. While modern originalism began as a critique of judicial over-reaching into the political process, it has evolved into a justification for courts to overturn democratic measures. Paradoxically, then, the popular originalism of the Tea Party may achieve its only success, not through the democratic process, but in the federal courts.

Keywords: Constitutional Theory, Political Development, Constitutional Law, Law and Politics

JEL Classification: H10, K19, K39

Suggested Citation

Zietlow, Rebecca E., Popular Originalism? The Tea Party Movement and Constitutional Theory (August 5, 2011). University of Toledo Legal Studies Research Paper No. 2011-09. Available at SSRN: https://ssrn.com/abstract=1905824 or http://dx.doi.org/10.2139/ssrn.1905824

Rebecca E. Zietlow (Contact Author)

University of Toledo College of Law ( email )

2801 W. Bancroft Street
Toledo, OH 43606
United States
(419) 530-2872 (Phone)
(419) 530-7911 (Fax)

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