Debating the Tea Party on the Constitution

Over the past two years, the Tea Party has dominated the political discourse in American politics. In spite of my disagreements with them, I have a grudging respect for the way the Tea Party activists have become passionately involved in the political process and have taken part in organized protests to try to sway the American public to their way of thinking. I hope more progressives emulate that sort of activism.

Despite that grudging respect, I disagree with a lot of things that have emanated from the Tea Party. One of my biggest disagreements with the Tea Party has to do with the way they interprete the Constitution. When I read a lot of what the Tea Party espouses about the Constitution and their philosophy of a limited federal government, I wonder if these people are confusing the Constitution with the Articles of Confederation. The arguments between liberals and the Tea Party conservatives over the role of the federal government is just a rehash of the recurring debate that has occurred since this country’s founding with the Federalists and the Republicans. At that time, Federalists like Alexander Hamilton, George Washington and John Adams argued that a strong federal government was necessary for the preservation of a functioning republic. Republicans and Anti-Federalists like Thomas Jefferson, Patrick Henry and George Mason argued for a weaker federal government and for more power to reside in the states. The Tea Party seems to be tapping more into the Anti-Federalist spirit with their calls for more state and local control. Liberals like me are tapping more into the Federalist spirit of a strong federal government.

The impetus for the creation of the U.S. Constitution was to have a stronger federal government to replace the weak federal government of the Articles of Confederation. The book DECISION IN PHILADELPHIA: THE CONSTITUTIONAL CONVENTION OF 1787 by Christopher Collier and James Lincoln Collier noted that the Articles of Confederation was based on the idea that each of the 13 states would remain sovereign. Article 2 stated clearly:

Each State retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.

Since each state was sovereign, states could ignore with impunity legislation that was passed by the Congress. The federal government had no way of forcing states to pay its fair share of taxes, of giving supplies and troops for battle. They could not control settlers interactions with the Native Americans, it could not enforce foreign treaties it signed on American citizens. The federal government could not settle interstate commerce disputes, it couldn’t settle claims on frontier land, and it couldn’t pay off the debts accrued during the war. Americans were increasingly despairing of the ineffectiveness of the American government under the Articles of Confederation.

In the chapter “Is There a ‘James Madison Problem'” from his book REVOLUTIONARY CHARACTERS, Gordon Woods notes that James Madison and many of the leaders of the Constitutional Convention a stronger federal government because of their own bad experiences in state legislatures in the 1780s. Woods wrote:

Madison’s experience with the populist politics of the state legislatures was especially important because of his extraordinary influence on the writing of the federal Constitution. But his experience was not unusual; indeed, the framers of the Constitution could not have done what they did if Madison’s experience had not bee widely shared. Many of the delegates to the Philadelphia Convention were ready to accept Madison’s Virginia Plan precisely because they shared his deep dislike of the localist and interest-ridden politics of state legislatures. ‘The vile State governments are sources of pollution which will contaminate the American name for ages… Smite them,’ Henry Knox ured Rufus King, sitting in the Philadelphia Convention, ‘smite them, in the name of God and the people.’

Not only Virginia but other states as well had been passing various inflationary paper money laws and other debtor relief legislation that were victimizing creditor minorities. All this experience during the 1780s sparked new thoughts, and Madison began working out for himself a new understanding of American politics, one that involved questioning conventional wisdom concerning majority rule, the proper size for a republic, and the role of factions in society. All these new ideas fed into the Virginia Plan, which became the working model for the Constitutional Convention that met in 1787. Crucial to this plan was the Congress’s power to negative or veto all state legislation that in its opinion violated the articles of the Union.

Woods makes an important point: the Constitution was created in reaction to the ineffectiveness of having 13 sovereign states trying to function within a loose confederation. Delegates like Alexander Hamilton, James Wilson and James Madison wanted to reduce the power of the states markedly. When the Constitution was brought before the states for ratification, leaders like Patrick Henry and James Monroe protested the power that the Constitution vested in the federal government as a potential tyrannical power that could wrest the rights of citizens and local government. They became the Anti-Federalists, and though they lost the battle to stop the ratification of the Constitution, they were able to push James Madison to fight for a Bill of Rights to be included into the Constitution to protect basic American liberties from an all encroaching state. So the Constitution was a compromise between the concerns of the Federalists and the concerns of the Anti-Federalists.

Tea Party activists like to quote the 10th Amendment as an argument for states rights. I would argue though, that their interpretation of the 10th Amendment is flawed. The 10th Amendment, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people”, is similar to Article 2 of the Articles of Confederation: “Each State retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.” But the Constitution and the Articles of Confederation have two very different visions of what a federal government should be like. In Richard Labunski’s book JAMES MADISON AND THE STRUGGLE FOR THE BILL OF RIGHTS, Labunski describes a debate over the 10th Amendment that shows a clear difference between the Articles of Confederation and the Constitution. Labunski wrote:

Tucker of South Carolina introduced a motion that showed how a single word inserted into an important section of the Constitution could have changed the nature of the document and the nation’s history. Tucker wanted to place the word ‘expressly’ in what would become the Tenth Amendment to confirm that the federal government was one of limited powers. His proposed language would have read ‘The powers not expressly delegated by this constitution…’ The Tucker amendment would have greatly diminished congressional authority under the ‘necessary and proper’ clause, which had granted Congress substantial discretion to carry out the responsibilities assigned by the Constitution. It would become a major issue throughout the nation’s history- going to the heart of how a federal system should allocate power between the states and the central government- that has never been settled.

Madison vigorously objected, arguing that ‘it was impossible to confine a government to the exercise of express powers(;) there must necessarily be admitted powers by implication, unless the constitution descended to recount every minutiae.’ He told his colleagues that this subject had been raised, discussed, and rejected by the delegates at the Virginia ratifying convention. Tucker’s motion was defeated in the committee of the whole, but he would raise it again in the full House, only to see it defeated on a recorded vote by a margin of 32 to 17.”

Madison’s idea that the Constitution granted the federal government powers by implication was important for leaders who felt the federal government had a role to play in resolving many of the nation’s social ills. Many of the Founding Fathers felt comfortable in having the federal government haiving a role in helping the poor and in abolishing slavery. Thomas Paine, for instance, advocated in the book Agrarian Justice the use of an estate tax to fund a universal old-age and disability pension, as well as a fixed sum to be paid to all citizens on reaching the age of 21.

Benjamin Franklin, a delegate of the Constitutional Convention, believed the welfare clause of the Constitution granted implied powers to the federal government to abolish slavery in the southern states. On February 3, 1790, Benjamin Franklin and the Pennsylvania Abolition Society submitted a petition in the House of Representatives to abolish slavery and stop the slave trade. The petition challenged the contention of Southern legislators that the Constitution prohibited legislation against the slave trade until 1808 by suggesting that the “general welfare clause” (Article 1, Section 8) allowed the Congress to eliminate the slave trade and abolish slavery. It was written in the petition,

Your Memorialists, particularly engaged in attending to the Distresses arising from Slavery, believe it their indispensable Duty to present this Subject to your notice. They have observed with great Satisfaction that many important & salutary Powers are vested in you for ‘promoting the Welfare & Securing the blessings of liberty to the “People of the United States.'” And as they conceive, that these blessings ought rightfully to be administered, without distinction of Colour, to all descriptions of People, so they indulge themselves in the pleasing expectation, that nothing, which can be done for the relive of the unhappy objects of their care, will be either omitted or delayed.
From a persuasion that equal liberty was originally the Portion, It is still the Birthright of all men, & influenced by the strong ties of Humanity & the Principles of their Institution, your Memorialists conceive themselves bound to use all justifiable endeavours to loosen the bounds of Slavery and promote a general Enjoyment of the blessings of Freedom.

John Quincy Adams and Abraham Lincoln believed the war powers of the executive office granted implied powers to the executive offfice to end slavery.

The book ARGUING ABOUT SLAVERY: THE GREAT BATTLE IN THE UNITED STATES CONGRESS by William Lee Miller describes the fight that John Quincy Adams led in the 1830s and 1840s in the House of Representatives to overthrow the gag rule that Southern Congressmen had placed to silence any debate on slavery. During that time, abolitionist had been sending petitions to Congress to get them to debate the slave issue. During his attempt to overthrow the gag rule, Adams said that the President under his war powers (Article 2, Section 2) could abolish slavery.

William Lee Miller wrote:

Adams insisted that antislavery efforts should concentrate on preventing the expansion of slavery, and, after the Mexican War, that is what happened. He believed that antislavery efforts should focus on the Slave Power’s violation of our shared civil liberty, and, in the 1850s, that is what happened. He shocked everyone by arguing that slavery, even in the states, could constitutionally be ended, under the war power, and, in the actions of Union generals and the confiscatory acts of Congress, and supremely in the presidential Emancipation Proclamation, that is what happened. And he argued that American slavery could be ended categorically, under the Constitution, with the Union intact, only by a constitutionaly amendment, and, twenty-six years later, after the terrible scourge of war, that also is what happened.

Abraham Lincoln did not feel that the Federal Government could do anything about slavery in the Southern states. He was respecting Article 4, Section 2, Clause 3 “No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.” But Lincoln did feel that the Federal Government had the right to restrict slavery from new territories that the U.S. acquires. In his first inaugural address, Lincoln said,

“But no organic law can ever be framed with a provision specifically applicable to every question which may occur in practical administration. No foresight can anticipate nor any document of reasonable length contain express provisions for all possible questions. Shall fugitives from labor be surrendered by national or by State authority? The Constitution does not expressly say. May Congress prohibit slavery in the Territories? The Constitution does not expressly say. Must Congress protect slavery in the Territories? The Constitution does not expressly say.”

During the war, Lincoln finally found the opportunity to end slavery in the southern states by executive order by his authority as “Commander in Chief of the Army and Navy” under Article II, section 2 of the United States Constitution in his Emancipation Proclamation on January 1, 1863. Lincoln interpreted the implied powers of the war powers act to allow him to abolish slavery. The Emancipation Proclamation reads:

Now, therefore I, Abraham Lincoln, President of the United States, by virtue of the power in me vested as Commander-in-Chief, of the Army and Navy of the United States in time of actual armed rebellion against the authority and government of the United States, and as a fit and necessary war measure for suppressing said rebellion, do, on this first day of January, in the year of our Lord one thousand eight hundred and sixty-three, and in accordance with my purpose so to do publicly proclaimed for the full period of one hundred days, from the day first above mentioned, order and designate as the States and parts of States wherein the people thereof respectively, are this day in rebellion against the United States, the following, to wit:

Arkansas, Texas, Louisiana, (except the Parishes of St. Bernard, Plaquemines, Jefferson, St. John, St. Charles, St. James Ascension, Assumption, Terrebonne, Lafourche, St. Mary, St. Martin, and Orleans, including the City of New Orleans) Mississippi, Alabama, Florida, Georgia, South Carolina, North Carolina, and Virginia, (except the forty-eight counties designated as West Virginia, and also the counties of Berkley, Accomac, Northampton, Elizabeth City, York, Princess Ann, and Norfolk, including the cities of Norfolk and Portsmouth[)], and which excepted parts, are for the present, left precisely as if this proclamation were not issued.

And by virtue of the power, and for the purpose aforesaid, I do order and declare that all persons held as slaves within said designated States, and parts of States, are, and henceforward shall be free; and that the Executive government of the United States, including the military and naval authorities thereof, will recognize and maintain the freedom of said persons.

Benjamin Franklin, John Quincy Adams and Abraham Lincoln all believed that the Constitution had implied powers not expressly written that could expand the powers of the federal government to address social ills and national emergencies. While the Tea Party people, in the spirit of the Anti-Federalists, see the federal government as the enemy of civil liberties, progressives in history have seen how the state and local government could also take away civil liberties.

If you look at the case of African American Civil Rights for instance, it has only been through the intervention of the federal government that has gotten African Americans the civil rights that they are due. After the Civil War, the Congress, through the leadership of Republicans like Charles Sumner, passed a series of laws to help grant equal citizenship to the newly freed slaves. The Fourteenth Amendment entitled all citizens equal protection under the law, allowed African Americans the power to make their own labor contracts and initiate lawsuits, and entrusted upon the federal government the power to protect equal rights and citizenship to all its citizens. The Fifteenth Amendment to the U.S. Constitution was passed to insure that the right to vote was not denied to a person due to race or any previous condition of servitude. The Civil Rights Bill of 1875 guaranteed that everyone, regardless of race, color, or previous condition of servitude, was entitled to the same treatment in “public accommodations”

When Reconstruction ended and federal troops withdrew from the South, African Americans saw those rights taken away as the local and state governments began to pass segregation and Jim Crow laws. The Ku Klux Klan began a campaign of assault, rape, and intimidation upon the freed African Americans, Republicans, and any whites who were sympathetic to the blacks’ cause. The culmination of the loss of rights was the Supreme Court decision Plessy versus Ferguson. From that time to the 1960s, civil rights activists agitated to pressure the federal government to enforce the Fourteenth and Fifteenth Amendments and to intervene to protect the rights of the African American community.

The Tea Party rests most of its arguments on the idea that individual states need to be protected from the tyranny of a powerful federal government. Yet the slavery era and the Jim Crow era shows that state and local governments are just as capable of tyranny, of depriving people their liberties and rights. In the 19th Century, the states rights argument made any attempt at a peaceful end to the institution of slavery impossible, making a civil war inevitable.

Since the states rights argument was used to justify institutions that denied whole groups of people their natural rights, from the institution of slavery in the 1800s, to the Jim Crow laws and segregation laws in the 20th century, I have an admitted bias against the states rights argument that many Tea Party activists advocate. It’s unfair though to say that anyone who argues for states rights is a racist. But I think because racists co-opted the states rights argument to justify institutional racism in the 19th and 20th centuries, it has tainted legitimate states rights arguments in the minds of many people, especially those who are in minority groups.

Unlike the Tea Party members, I believe that the Constitution empowers the federal government to helps it’s most vulnerable citizens from the worst effects of the free market system. The Tea Party is tapping not tapping into the spirit of the Constitution, which advocates a greater federal government, but into the spirit of the Anti-Federalists, which views with suspicion any centralizing of political power. The Tea Party sees the federal government as the greatest threat to American liberty. I see powerful corporations and unregulated free markets as being the greater threats to the liberties of American citizens. In my point of view, the federal government, with all its flaws, is the one thing that can correct some of the flaws of the free market. This is the eternal debate that this country will always have between the roles of the federal government and the roles of the states. It’s a healthy debate that keeps both impulses in check.

Though I disagree with the Tea Party in a lot of things, I do agree with them in the fact that citizens of our country have to be involved in the political process, to have our voices heard and have our concerns met. The city, state and federal government only works to the extant that our citizens are involved in the issues that are being debated in government circles and remain vigilant to keep our politicians accountable. This is something that the Federalists and Anti-Federalists agreed with, and that today’s progressives and Tea Party conservatives agree with.

Jospeh Ellis, in his great book AMERICAN CREATION: TRIUMPHS AND TRAGEDIES AT THE FOUNDING OF THE REPUBLIC, contrasts the Declaration of Independence with the Constitution. It could also serve as a contrast between progressives and Tea Partyiers. Ellis wrote:

Though not a separate achievement per se, a corollary triumph that merits mention is the abillity to reconcile to competing and, in several respects, contradictory political impulses. There were really two founding moments: the first in 1776, which declared American independence, and the second in 1787-1788, which declared American nationhood. The Declaration of Independence is the seminal document in the first instance, the Constitution in the second. The former is a radical document that locates sovereignty in the individual and depicts government as an alien force, making rebellion against it a natural act. The latter is a conservative document that locates sovereignty in that collective called ‘the people’, makes government an essential protector of liberty rather than its enemy, and values social balance over personal liberation.

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About angelolopez

I’ve wanted to be an artist all my life. Since I was a child I’ve drawn on any scrap of paper I could get a hold of. When I went to San Jose State University, I became more exposed to the works of the great fine artists and illustrators. My college paintings were heavily influenced by the humorous illustrations of Peter De Seve, an illustrator for the New Yorker magazine. I also fell under the spell of the great muralists of the 1930s, especially Thomas Hart Benton and Diego Rivera. I graduated with a degree in Illustration. Since my time in college, my goal has been to be a successful children’s book illustrator. I’ve illustrated 3 books: Two Moms the Zark and Me by Johnny Valentine in 1993; Night Travelers by Sue Hill in 1994; and Cherubic Children’s New Classic Story Book Volume 2 for Cherubic Press in 1998. I’ve painted murals for Lester Shields Elementary School in San Jose, the Berryessa branch of the San Jose Public Library, and Grace Community Church in Los Altos. I’ve had a few illustrations published in South Bay Accent Magazine and I will have an illustration published in the January/February issue of Tikkun magazine.
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One Response to Debating the Tea Party on the Constitution

  1. Peter says:

    I was in a recent debates with Tea Party sympathizer who always invoked the US Constitution to lend authority to her arguments.
    Your thoughtful, thorough, and well-researched article gave form to the sense of why I felt that using the Constitution in this “fundamentalist” way was inherently self-contradictory.
    Nice work!

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