Tag: Tea Party

Tea Party Isn’t Mellowing GOP Militarism

Lindsay Graham isn’t alone when he imagines an emerging “isolationist wing” of the Republican Congress. Pundits have lately both lamented and celebrated the arrival of a Tea Party foreign policy, where deficit fears restrain military adventures and Pentagon spending.

I wish there were such a thing. My op-ed in yesterday’s Philadelphia Inquirer shows that there isn’t.  I report there on research that I did (really research that intern Matt Fay did) on support among Republicans in the House and Senate for cutting defense spending and getting out of Afghanistan. I found little.

I also tested the idea that the Tea Party is restraining Republican militarism, by comparing the 101 freshmen that largely claim adherence to that movement to other Republican members. Freshmen are not more dovish than the rest, suggesting that the Tea Party reflects Republican politics more than it guides it. A post I put up yesterday on the National Interest’s Skeptics blog illustrates this point with charts.

As Tad DeHaven notes, Congressional Republicans, including leaders in both Houses, have increasingly said that they would support defense cuts as part of a deficit reduction package. But those taking that position remain a minority of their party–fifteen percent by a generous accounting, comprising roughly equal fractions of new and old members. And the cuts that the minority of Republican want are likely to be cosmetic, trimming fat and chasing efficiencies, not taming the beast by taking on less missions and cutting force structure. For these reasons, it’s not surprising that the symbolic spending cut resolution up for a House vote Tuesday exempts the nearly two-thirds of domestic spending labeled as “security,” as I discussed in another Skeptics post.

GOP support for indefinite war in Afghanistan is stronger. Only ten Congressional Republicans are obviously against that war, and not one is a Senator or a freshman. That last bit bears repeating: none of the 101 new Republican members of the House and Senate are clearly against the war in Afghanistan.

The difference between new and old Republicans on these issues is that the new members are less likely to have firm positions. They got elected largely without expressing coherent views on defense issues. Since then, many seem to be reading the tea-leaves and keeping quiet about those matters.  But they will soon be tied into positions as they justify votes. So the coming months are crucial in determining how a big chunk of Republicans vote for some time.

I am not optimistic that many will side with those of us that would like to vastly scale back our foreign policy. In the Skeptics post I explain why:

The GOP has been in the habit, probably since the 1970s, of out-hawking the Democrats and equating military aggressiveness with support for the military and American virtue. Whether that is winning political strategy I’m not sure (yes in 2004, no in 2008), but it is at least a powerful habit, reinforced by decades of neoconservative warbling, whose authors are now ensconced in the nation’s most prominent op-ed pages and think tanks.

Beyond that, military spending bestows its munificence in many districts, generating bipartisan support. But, on the left, the prospect of spending caps creates countervailing interests. Caps force defenders of other domestic spending to be dovish on defense. Health care’s cost competes with the Navy’s, especially under budget caps. That’s not as issue on the right.

The most important force keeping Republican fond of military adventure, however, is common to Democrats: international opportunity. We have expansive foreign policies because we can. Balancing is weak. The costs of adventurism are few and diffuse. For Europeans alive 100 years ago, foreign policy failures could bring conquest and mass death. Even successful wars would kill many sons and consume a considerable portion of societal wealth. For most Americans, especially since the draft ended, foreign policy disasters bring marginally higher tax rates. Ideologies justifying expansive policies—liberal internationalism on the left, neoconservatism on the right—grow popular because they justify the behavior this structure allows.

Doves say that the United States cannot afford its foreign policy. The problem is that it can, even when recessions make the load a bit harder to bear. Unsustainable things end. The United States can afford to do all sorts of foolish things.

Justice Scalia Speaks to the Congressional Tea Party Caucus

Today POLITICO Arena asks:

Is there anything inappropriate about Justice Scalia’s speaking about the Constitution before Rep. Michele Bachmann’s Tea Party Caucus, as the New York Times editorial board suggests? Is it time to drop the fiction of a judicial monastery with justices detached from the political process?

My response:

There is nothing inappropriate about Justice Scalia’s speaking today before the congressional Tea Party Caucus – or any other group, for that matter, that is well within the mainstream of American politics. As POLITICO reports, Rep. Bachmann’s event is open to all members of Congress, and several Democrats have said they’ll attend.

The complaint by the editorial board of The New York Times –  that “the Tea Party epitomizes the kind of organization no justice should speak to” –reflects nothing more than that corner’s refusal to accept the legitimacy of the Tea Party, notwithstanding last November’s elections. When the board goes on to condemn the Tea Party’s “well-known and extreme point of view about the Constitution,” it might better direct its wrath at James Madison. After all, as the principal author of the Constitution, he’s the Framer who promised in Federalist 45 that the powers of the new government would be “few and defined” – the “extreme” view the Times editorialists regularly condemn.

In deciding cases, judges and justices need to be detached from politics, of course: They belong to the “non-political branch.” But that hardly precludes them from talking about the Constitution in political contexts. If anything, it is the Congress that needs to be more attentive to the Constitution its members take an oath to uphold. That, in fact, is the root of our problem today. And we have the Tea Party to thank for noticing it.

Government and Violence

Radley Balko writes:

[I]t’s worth remembering that the government initiates violence against its own citizens every day in this country, citizens who pose no threat or harm to anyone else. The particular policy that leads to the sort of violence… is supported by nearly all of the politicians and pundits decrying anti-government rhetoric on the news channels this morning. (It’s also supported by Sarah Palin, many Tea Party leaders, and other figures on the right that politicians and pundits are shaming this weekend.)

I hope Rep. Giffords—and everyone wounded yesterday—makes a full recovery. It’s particularly tragic that she was shot while doing exactly what we want elected officials to do—she was making herself available to the people she serves. And of course we should mourn the people senselessly murdered yesterday, government employees and otherwise: U.S. District Judge John Roll, Dorothy Murray, Dorwin Stoddard, nine-year-old Christina Green, Phyllis Scheck, and Gabe Zimmerman.

That said, I long for the day that our political and media figures get as indignant about innocent Americans killed by their own government—killed in fact, as a direct and foreseeable consequence of official government policy that nearly all of those leaders support—as they are about a government official who was targeted by a clearly sick and deranged young man. What happened this weekend is not, by any means, a reason to shunt anti-government protest, even angry anti-government protest, out of the sphere of acceptable debate. The government still engages in plenty of acts and policies—including one-sided violence against its own citizens—that are well worth our anger, protest, and condemnation.

The worst outcome would be for all dissent to become suspect. “Anti-government” is a concept used, essentially, to stifle debate, by conflating reasonable criticisms with the actions of lunatics. Both — of course! — are “anti-government,” and both are therefore guilty. It should be obvious what sort of agenda this furthers: Everything “government” is good.

Toward Restoring Constitutional Government

Today POLITICO Arena asks:

In light of today’s reading of the Constitution in the new House, what misinterpretations of the Constitution do you regularly see in American politics? And are House Republicans implying that the previous Democratic majority did not have a firm grasp of the government’s founding document?

My response:

Thanks to the Tea Party, as I wrote in Tuesday’s Wall Street Journal, Congress seems to be rediscovering the Constitution – or at least many House Republicans seem to be. When members read the document aloud today, apparently for the first time in the nation’s history, they’ll be throwing down a marker: “We take the Constitution seriously, and intend to abide by its principles.” If true, how refreshing.

This is not a partisan matter. As many Republicans have said – albeit, some only after November’s elections – both parties for years have ignored the Constitution’s limits on political power. To confirm that, we need look no further than to James Madison, the principal author of the document, who assured skeptical ratifiers in Federalist 45 that the powers authorized by the Constitution were “few and defined.” That hardly describes today’s federal behemoth.

Thus, the main “misinterpretation” has been over the very idea of constitutional limits – particularly as inherent in the doctrine of enumerated powers, the principle that “We the People” gave Congress only 18 enumerated powers. The Commerce Clause, for example, was written mainly to ensure interstate commerce unfettered by state interference, not to enable Congress to regulate every aspect of life. And the General Welfare Clause was meant to limit Congress’s taxing power pursuant to its enumerated ends to objects of national, not particular, concern: it wasn’t meant to enable Congress to redistribute private wealth at will.

The great change came during the New Deal, of course, after FDR’s infamous Court packing threat, when a cowed Court began turning the Constitution on its head. But don’t take my word for that constitutional legerdemain. Here’s Roosevelt, writing to the chairman of the House Ways and Means Committee in 1935: “I hope your committee will not permit doubts as to constitutionality, however reasonable, to block the suggested legislation.” And here’s Rexford Tugwell, one of the principal architects of the New Deal, reflecting on his handiwork some 30 years later: “To the extent that these new social virtues [i.e., New Deal policies] developed, they were tortured interpretations of a document [i.e., the Constitution] intended to prevent them.” They knew exactly what they were doing.

So when today’s liberals tell us the Constitution authorizes the vast federal programs that now reduce so many Americans to government dependents, they reveal their historical ignorance – or their political ambition. And they’re reduced to the silliness we saw in Tuesday’s New York Times, where the Times editorialists ranted against today’s constitutional reading as “a theatrical production of unusual pomposity.” Illustrating their own penchant for pomposity, they then dug into their bag of adjectives and let loose: “a self-important flourish,” “their Beltway insider ritual of self-glorification,” “a presumptuous and self-righteous act,” “an air of vacuous fundamentalism,” ”all of this simply eyewash,” “a ghastly waste of time.” They must have been emotionally drained when they finished their screed.

The Constitution is not a blank slate, details to follow, as decided by transient majorities. Were it that, it never would have been ratified. After all, we fought a revolution to rid ourselves of overweening government, and fought a Civil War to institute at last the grand principles of the Declaration of Independence. Nor will those principles be restored in a day. But today’s reading will start a debate that is sorely needed, at the end of which one can hope for restoration.

Citing the Constitution

A few responses to my mention yesterday of the new House rule requiring each introduced bill to cite a specific constitutional provision for Congress’s authority to pass it asked me to elaborate on what this would mean in practice. Well, this is apparently a new thing so nobody knows exactly, but the Republican leadership has provided a fascinating memo providing guidance to all (not just GOP) lawmakers.

First of all, the Constitution has to be cited “as specifically as practicable.”  For example: ”The constitutional authority on which this bill rests is the power of Congress to make rules for the government and regulation of the land and naval forces, as enumerated in Article I, Section 8, Clause 14 of the United States Constitution.”  That’s pretty good and specific. 

But try this one: ”The Congress enacts this bill pursuant to Clause 1 of Section 8 of Article I of the United States Constitution and Amendment XVI of the United States Constitution.” It looks specific – lots of numbers – but the first clause of Article I, Section 8 is a biggie: ”The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.” So let’s say you have a tax bill: do you just cite that?  Well, that shouldn’t be enough because, as we’ve learned with the Obamacare litigation, even if something is a tax – highly questionable in the individual mandate context – it needs to be attached to an enumerated power because the general welfare is not infinitely elastic (instead limiting Congress’s exercise of its enumerated powers to ends that are truly for the national – as opposed to particular, or local – good).

And we haven’t even gotten to the Fourteenth Amendment, about whose meaning several libraries of books, law review articles, and judicial opinions have been written.

Luckily, the memo provides a list of resources members can consult, including the Federalist Papers, the online Founders’ Constitution, and the following list of “think-tanks and associations”: Brookings, Cato, the Federalist Society, and the American Constitution Society (and Heritage is mentioned earlier in the document, particularly its excellent Heritage Guide to the Constitution, which contains entries by several Cato-affiliated folks).

So, yeah, congressional staff, if you have any questions, feel free to drop me a line for the true meaning of the Tonnage Clause (ok, maybe not that one, but I’m pretty good with, for example, the Commerce Clause and Priviliges or Immunities Clause).

Which raises another question, even if the would-be bill sponsor meets the ”specificity” requirement: Who gets to determine whether the cited provision indeed provides the authority claimed?  On what standard?  Well: “The adequacy and accuracy of the citation of constitutional authority is matter for debate in the committee and in the House.”

That sounds great: Congress will actually be debating whether it has the authority to do something!  Kickin’ it 19th-century style! The Congressional Record might now be as interesting reading as the transcripts of Supreme Court arguments, but more so because the debates there will almost certainly be less abstruse and designed to appeal to (and satisfy) constituents.

Finally, the memo has a relatively long FAQ section, including my personal favorite:

Q. Isn’t it the courts’ duty to determine whether a law is constitutional and thus doesn’t this rule infringe on the power of the courts?

A. No. While the courts have the power to overturn an Act of Congress on the basis that it is unconstitutional, Members of Congress have a responsibility, as clearly indicated by the oath of office each Members takes, to adhere to the Constitution.

Yes!  Congressmen and senators (and the president) take an oath to “support and defend the Constitution” so they are derelict in their duty if they don’t consider a proposed bill’s constitutionality – in contradistinction to Nancy Pelosi’s “are you serious?” position and George W. Bush’s “let the Supremes sort it out” view (with respect to the McCain-Feingold campaign finance law, for example).  This may be one of the few things on which I agree with former Delaware senatorial candidate Christine O’Donnell (who now faces allegations of having violated campaign finance rules, but perhaps that’s just, um, a witch-hunt).

As for what role these new constitutional citations will play in any future litigation, well, jurists use legislative history in various ways – some, like Justice Scalia, not at all – and this would become one more piece of evidence elucidating congressional intent or justification (which, as we also know from the Obamacare lawsuits, courts are powerless to look behind to, for example, transform a regulation into a tax).  Ultimately, of course, Congress’s final vote on the proposed bill will incorporate each member’s constitutional judgment.  But courts won’t uphold a law just because Congress thinks it’s kosher.

So why have the rule at all?     

A. Just as a cost estimate from the Congressional Budget Office informs the debate on a proposed bill, a statement outlining the power under the Constitution that Congress has to enact a proposed bill will inform and provide the basis for debate. It also demonstrates to the American people that we in Congress understand that we have an obligation under our founding document to stay within the role established therein for the legislative branch.

Sounds good – great, actually – to me.  But the proof will be in the pudding of how and what the 112th Congress legislates.

H/T: Josh Blackman

Congress Rediscovers the Constitution

If the new Congress to be sworn in on Wednesday is the Tea Party’s cardinal achievement so far, its most symbolic achievement will unfold the next day, when the first order of business in the House will be a reading, aloud, of the Constitution – by all accounts, for the first time in the nation’s history. I discuss this issue more fully in this morning’s Wall Street Journal. Let me add simply this:

Symbols are important. When the House votes next week to rescind ObamaCare, as it is expected to do, that vote will be symbolic, because no one expects the Senate to uphold the vote, nor the president, if it did, to do anything but veto it. But the new House, responding to the voters who sent them to Washington, will have thrown down the gauntlet, and the real work will then begin.

Restoring limited constitutional government is a tall order, to be sure, and it cannot happen in a day. But we didn’t get into this mess in a day, either. As we saw a generation ago in Eastern Europe, and are now starting to see in Western Europe, the road out of the ubiquitous state is difficult, with fits and starts along the way. But the alternative is simply unacceptable, because unconstitutional. We’re fortunate that we’re not in as deeply as many others, and fortunate too that we have a Constitution to serve as our touchstone. Wednesday, with the oath “to support and defend the Constitution,” will be a start. Thursday’s reading will dramatically set the stage for the debate that follows. The hard work then begins.

The Constitutional Vision of The New York Times

The editorialists at the The New York Times are out of sorts this morning over a Tea Party backed constitutional amendment that would give state legislatures the power to veto any federal law or regulation if two-thirds of the legislatures approved. Despite the backing of incoming House majority leader Eric Cantor and legislative leaders in 12 states, the proposal has little chance of succeeding, the Times avers, “but it helps explain further the anger-fueled, myth-based politics of the populist new right.” Indeed, it expresses “with bold simplicity the view of the Tea Party and others that the federal government’s influence is far too broad.”

Well? Isn’t that what the election last month was all about? But right there, for the Times, is the problem: “In past economic crises, populist fervor has been for expanding the power of the national government to address America’s pressing needs. Pleas for making good the nation’s commitment to equality and welfare have been as loud as those for liberty.” With the Tea Party, however, the tables have turned. What most troubles the Times, it seems, are Tea Party signs that say “We Want Less!”

And nowhere is that better captured than when the Times speaks of “the mistaken vision of federalism on which [this amendment] rests. Its foundation is that the United States defined in the Constitution are a set of decentralized sovereignties where personal responsibility, private property and a laissez-faire economy should reign. In this vision, the federal government is an intrusive parent.”

If that vision is “mistaken,” so too, apparently, were the Founders, because it was their vision as well. To be sure, the Constitution they crafted held “competing elements, some constraining the national government, others energizing it,” as the Times writes. And true also, the government they shaped was meant “to promote economic development that would lift the fortunes of the American people” – but mainly by securing the framework for liberty, the rule of law, not by pursuing prosperity through government programs. In particular, the Framers believed in personal, not government, responsibility; private, not collective, property; and a free, not a planned, economy. And they left most power with the states, where it would be exercised responsibly, or not – something to keep in mind as we watch our “failed states” asking Washington (read, the other states) to bail them out.