The Tea Party and the Constitution

60 Pages Posted: 15 Feb 2013 Last revised: 20 Feb 2013

Christopher W. Schmidt

Chicago-Kent College of Law; American Bar Foundation

Date Written: March 18, 2011

Abstract

This Article considers the Tea Party as a constitutional movement. I explore the Tea Party’s ambitious effort to transform the role of the Constitution in American life, examining both the substance of the Tea Party’s constitutional claims and the tactics movement leaders have embraced for advancing these claims. No major social movement in modern American history has so explicitly tied its reform agenda to the Constitution. From the time when the Tea Party burst onto the American political scene in early 2009, its supporters claimed in no uncertain terms that much recent federal government action overstepped constitutionally defined limitations. A belief that the Constitution establishes clear boundaries on federal power is at the core of the Tea Party’s constitutional vision.

Yet the most distinctive — and I believe ultimately the most significant — aspect of the Tea Party’s constitutional vision is not necessarily the specifics of its constitutional claims (these ideas have long been common currency in conservative and libertarian circles), but the distinctly non-judicial and participatory approach the Tea Party has taken to its project of constitutional reform. The Tea Party offers a powerful case study what a recent generation of scholarship has identified as “popular constitutionalism.” Its constitutional agenda has little role for the courts. Tea Party activists have been strikingly successful in locating arenas of constitutional activism that do not depend upon the formal apparatus of the law, such as judges, lawyers, and complex legal doctrine. Rather than litigation, the Tea Party has pursued an agenda of constitutional practice focused on educational outreach and political mobilization. After describing the key elements of Tea Party constitutionalism, with a focus on the extrajudicial mechanisms through which the Tea Party has advanced its constitutional agenda, I conclude with an assessment of the possible impact of the Tea Party on constitutional law and practice, as well as its implications for future scholarship on popular constitutional mobilization.

Keywords: Tea Party, Constitution, Constitutional Law, popular constitutionalism, libertarianism, mobilization, extrajudicial, law and society

JEL Classification: K10, K19, K30, K39

Suggested Citation

Schmidt, Christopher W., The Tea Party and the Constitution (March 18, 2011). 39 Hastings Constitutional Law Quarterly 193 (2011); Chicago-Kent College of Law Research Paper. Available at SSRN: https://ssrn.com/abstract=2218595

Christopher W. Schmidt (Contact Author)

Chicago-Kent College of Law ( email )

565 W. Adams St.
Chicago, IL 60661-3691
United States

American Bar Foundation ( email )

750 N. Lake Shore Drive
Chicago, IL 60611
United States

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