The Tea Partiers insist that they obey the Constitution to the letter of the law and that their radical agenda embodies the Constitutional idea. But study the Constitution and you’ll see that these so-called Constitutional conservatives don’t love the law – they’re trying to distort and rewrite the Constitution to subvert it to their wishes. These 8 facts serve as proof.
1. Congress enjoys a Constitutional authority to provide social services.
The first and foremost power the Constitution grants Congress is the right to “collect taxes…to provide for common defense and general welfare” of the nation. Michele Bachmann and other radical Republicans ignore this Constitutional imperative in their quest to dismantle all federal initiatives that aren’t explicitly spelled out in the Constitution.
If the Tea Party gets their way, it would mean:
- The end of Medicare: Bachmann has said she wants to “wean” future retirees off guaranteed health coverage in old age.
- The end of Social Security: Rick Perry calls our nation’s retirement security, which we fund through payroll taxes, a “Ponzi scheme.”
- The end of federal funding for education: Just this week, Bachmann argued to eliminate the Department of Education claiming that federal oversight of education “eviscerates” parents’ Constitutional rights to administer education (see video).
Obviously, the Tea Party’s strict constructionism doesn’t permit the common-sense, for-the-social-good governance the forefathers intended. For further illustration, consider the current imperative to create jobs. Republicans are already opposing the bipartisan ideas in Obama’s American Jobs Act. The GOP appears ready to deny jobs to teachers and construction workers and strike down incentives for businesses to hire new workers.
Nevertheless, Obama’s Sept. 8 jobs speech delivered a compelling defense of the most basic Constitutional principle of general welfare:
How many jobs would it have cost us if past Congresses decided not to support the basic research that led to the internet and the computer chip? What kind of country would this be if this Chamber had voted down Social Security or Medicare just because it violated some rigid idea about what government could or could not do? How many Americans would have suffered as a result?
2. SCOTUS has upheld broad federal powers under the Constitution.
Following in the ideological footsteps of founding father Alexander Hamilton, the U.S. Supreme Court has consistently upheld that federal authority extends beyond the specific Congressional powers enumerated in the Constitution. Two landmark precedents were:
- United States v. Butler (1936), which ruled that Congress has the right to tax for the general welfare beyond what the Constitution specifically lists. The majority opinion stated the general welfare clause is “a power separate and distinct” and “not limited by the direct grants of legislative power found in the Constitution.”
- Helvering v. Davis (1937), which upheld the constitutionality of Social Security by affirming Congress’ right to spend money to promote the general welfare – a concept the Court said changes with the times and is for Congress to decide, not the states.
Thus, the Tea Party’s “cut-the-head-off-the-snake” anti-government attitude flouts both the Constitution’s original intent and the SCOTUS precedents that have upheld a broad interpretation of the general welfare clause.
3. Far from outlawing gay marriage, Constitutional Amendments actually protect it.
Even though the radical right wants to strictly limit Democrats’ legislative powers, they don’t mind grabbing powers for themselves that aren’t expressed in the Constitution. Take for example the Tea Party’s imagined mandate to marginalize homosexuals and project morality onto others.
Thankfully, the tide is turning against the Tea Party on this issue. Earlier this year the Obama administration called the anti-gay Defense of Marriage Act unconstitutional. In June, a California bankruptcy judge also ruled DOMA unconstitutional. Then he called out conservatives on their misplaced homophobic zeal:
“The government’s only basis for supporting DOMA comes down to an apparent belief that the moral views of the majority may properly be enacted as the law of the land…in disregard of the personal status and living conditions of a significant segment of our pluralistic society.”
Eventually, homosexuals will win marriage equality. The outcome is inevitable because our forefathers designed specific civil liberties to protect against the tyranny of religious zealots in Britain. They asserted these rights in two separate amendments:
9th: “The enumeration in the Constitution, of certain [government] rights, shall not be construed to deny or disparage others retained by the people.”
14th (excerpted): “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
4. The 14th Amendment forbids severe immigration laws that racially profile Latinos and Muslims.
Just as the 14th amendment protects gay rights, it also protects ethnic minorities from the immigration Gestapo.
The draconian immigration law Alabama just passed (which a federal judge has blocked) allows the police to detain people suspected of being illegal immigrants if they aren’t carrying proper documentation. It also makes it illegal for anyone to give an undocumented immigrant a ride in a car (without checking their papers first).
From a civil liberties standpoint, the Alabama permits the targeting and unlawful detention of citizens who just look like possible illegal immigrants because of their ethnicity. By condoning racial profiling and by permitting detentions of citizens who aren’t carrying papers, the Alabama law strips racial minorities of their liberty and controverts their 14th Amendment rights to liberty and equal protection.
5. The 16th Amendment gives Congress the authority to collect income taxes from any source.
Self-proclaimed Constitutional conservatives probably hate nothing more than the 16th Amendment:
The Congress shall have power to lay and collect taxes on incomes, from whatever source derived.
While most ordinary citizens pay income tax (unless they don’t earn enough to have a tax liability), the wealthy play by different rules. For instance:
- Nearly 1,500 millionaires and billionaires paid NO income tax in 2009.
- Many of America’s most profitable corporations pay little to no income tax.
- Current GOP presidential hopefuls want to cut the official corporate income tax rate to the single digits – or even zero.
- Republican presidential candidate also want to charge zero taxes on income earned through investments (capital gains).
Moreover, the Constitution does not authorize spending tax money on Big Oil profits or private jet ownership. Constitutional conservatives took it upon themselves to hold the debt ceiling and America’s credit rating hostage to protect these giveaways to the already wealthy.
6. Republican-backed voting restrictions circumvent the 24th Amendment.
Under the guise of stopping practically non-existent voting fraud, Republicans are working to disenfranchise elderly, poor, student, minority and disabled voters. These groups overwhelmingly vote Democrat and they also have a harder time meeting the new Republican voting standards.
- the adoption of mandatory government-issued photo ID laws as a prerequisite to casting a ballot,
- proof of citizenship requirements for new voters,
- reductions in the number of days (and hours) previously allocated for early voting, and
- burdens imposed on those seeking to conduct voter registration drives.
Collectively, these laws represent a new form of 21st century voter suppression that President Bill Clinton calls a new “Jim Crow era.” And since people must pay fees to acquire the necessary ID documents, such laws amount to a violation of Section 1 of the 24th Amendment:
The right of citizens of the United States to vote in any primary or other election…shall not be denied or abridged by the United States or any State by reason of failure to pay poll tax or other tax.
7. The Constitution does not grant any authority to ban abortion.
Given the fervor with which Constitutional conservatives attack pro-choice rights, you’d think the Constitution grants authority to regulate or ban abortion. It does not.
A woman’s right to choose is protected by the Roe v. Wade ruling and the 9th Amendment, which prevents government from over-reaching into individuals’ private lives. (“The enumeration in the Constitution, of certain [government] rights, shall not be construed to deny or disparage others retained by the people.”)
Even though the matter is settled that a woman has the right to privately select her health care options, radical conservatives are still pushing through such exceptionally anti-choice legislation. Republicans are going so far as to criminalize miscarriage. In Georgia, Rep. Bobby Franklin proposed a bill to charge a woman with felony murder if she is unable to prove her miscarriage was an accident.
8. The Constitution allows the federal government “to regulate commerce…among the several states,” which is the Constitutional key that may allow health reform to persevere.
Republicans decry “Obamacare” for its “unconstitutional” individual mandate. Yes, buying health insurance may be a financial burden to some. However, the Affordable Care Act reasons that everyone must ultimately receive health care if they plan on staying alive. Health reform just asks that people pay health care costs sooner rather than later for the greater economic good (and it subsidizes premium costs for families earning less than $88,000).
The 6th circuit federal court ruled in June that the government can regulate the purchase of health insurance under the interstate commerce clause on the grounds that waiting to pay for health care until you get sick (or “self-insuring”) adversely impacts the cost of health care for everyone:
“The practice of self-insuring substantially affects interstate commerce by driving up the cost of health care as well as by shifting costs to third parties.”
A second federal court ruling in August opposed the individual mandate, saying the federal government cannot require citizens to enter into contracts with private health insurers. The Supreme Court will likely rule on the constitutionality of health reform later this year.
On Obama, the once and future constitutional law professor
This post would not be complete if I didn’t acknowledge that Obama too has gone astray of the Constitution, just not in the ways the Tea Party claims. Obama has:
- Argued to hold some of the approximately 172 remaining GITMO detainees indefinitely, subverting the 6th Amendment right to a “speedy and public trial.” However, Obama is not restricting habeas corpus rights as some claim; in fact, he has provided for additional periodic reviews for detainees whose writs of habeas corpus have failed.
- Continued Bush-era wire tapping (which was somewhat legalized by the PATRIOT Act but which still stands in violation of the 4th Amendment protection against unreasonable search and seizure).
- Sent air troops to fight in Libya for more than 90 days without constitutionally required Congressional approval. (The White House claims that the War Powers Resolution does not apply because the troops weren’t engaged in warfare on the ground.)
The restriction of civil liberties, even for foreign terror suspects, is a serious departure from the Constitutional principle of a fair justice system. Obama is engaged in a precarious Constitutional dance motivated by the desire to prevent loss of life.
On the other hand, the so-called Constitutional conservatives are trying to remake the Constitution to serve the interests of the wealthiest and most powerful. If a Republican White House or Congress prevails in 2012, we will continue to see our nation drift away from the concept of “general welfare” to a state in which the government no longer provides health care, education or nutritional safety nets for the young, infirm, elderly, and poor. And we will see greater deregulation that will come at a great cost to our environment, our health, and our economic stability.
Please vote against the Republican agenda on Tuesday, November 6, 2012. This may be the most crucial election of our lifetimes with Medicare, Social Security, public health and education teetering on the brink of Constitutional conservativism.
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Edited By: Sherri Yarbrough