The Tea Party, the Constitution, and the Repeal Amendment
Randy E. Barnett
Georgetown University Law Center
March 13, 2012
Georgetown Public Law Research Paper No. 12-036
Northwestern University Law Review Colloquy, Vol. 105, 2011
Given that the Tea Party is a right-of-center movement, it does not take an empiricist to know that most Tea Partiers hold right-of-center views on a variety of issues. This does not mean, however, that the Tea Party movement is about immigration policy or social issues like abortion, any more than the gun-rights movement is about any other beliefs that may be held by a majority of gun-rights advocates. Instead, the Tea Party movement is about two big subjects: first, the undeniable recent surge in national government spending and debt, and second, what Tea Partiers perceive as a federal government that has greatly exceeded its constitutional powers. The former concern was initially induced by the government bailouts that began under the Bush Administration, while the latter concern was accentuated by the year-long run up to the enactment of the Affordable Care Act in March of 2010. As a result, there is more grassroots interest in the Constitution than has existed in my lifetime, and perhaps in over a century. So what does this mean? Well, there’s the rub.
Precisely because the Tea Party is not astroturf directed by Kansas billionaires, because it is not a product of Fox News, because it is not an adjunct of the Republican Party, in short, because it is a genuinely grassroots movement of millions of people, it has no official doctrines or national spokespersons. As such, Tea Party organizations couch their beliefs in extremely general terms — restore fiscal balance, end the bailouts, restore constitutional limits on the federal government.
Genuine mass movements do not develop innovative or concrete policies. Instead, they demand that those in the political and intellectual classes produce ideas that the movement will then vet. In other words, the Tea Party is not the producer of ideas for social change, nor should that be expected. Rather, it is an emerging political market for such ideas. When it comes to the Constitution, one no more expects Tea Partiers to produce detailed critiques of current constitutional practice or develop a reform agenda than one expects the readers of these Remarks collectively to design the iPods, iPhones or iPads they love, the cars they drive, or the clothes they wear. Just as consumers are the ultimate judges of whether they like or are indifferent to any particular device, so too will Tea Partiers be the judges of which reform ideas appeal to them and which leave them cold and unsatisfied.
Number of Pages in PDF File: 8
Keywords: Tea Party, Repeal Amendment, Popular Constitutionalism, Constitutional Law, Public Policy, Politics
JEL Classification: K00, K1, K3
Date posted: March 13, 2012 ; Last revised: March 15, 2012