What's the fight about?
Power and who gets to exercise it. Tea Party adherents and many conservative Republicans argue that the federal government has vastly exceeded limits that the Founders built into the U.S. Constitution, seizing authority over individuals and private businesses. Specifically, conservatives say the federal government had no constitutional authority to bail out private banks and auto companies with taxpayer dollars, or to adopt a sweeping heath-care-reform law that will eventually require some Americans to purchase insurance. "We believe the Constitution has been discarded almost entirely by this Democratic Congress and administration," says Tea Party leader Michael Johns.
Is this a new fight?
Actually, it's a recurring theme in American history. During the Civil War, Abraham Lincoln was portrayed as a tyrant who had trampled the Constitution — and states' rights. Among his sins, according to the Southern states, were imposing the nation's first income tax and insisting that slave states remain in the Union. In the Progressive Era of the early 1900s, government attempts to improve labor conditions sparked a debate on laissez-faire economics not unlike the one raging in Washington today. In the 1920s, the Republican U.S. Solicitor General James Beck warned that because of the erosion of traditional morals and personal liberty, "The Constitution is in graver danger today than at any other time in the history of America."
What were the Framers' intentions?
They were embroiled in many of the same debates that rage today. The original 13 states were organized under very libertarian principles in the Articles of Confederation, in which each state was sovereign. The central government was charged with national defense, but was unable to impose taxes, and had little authority to regulate commerce or disputes among the states. In fact, many states produced their own currencies, creating economic chaos. In order to "anticipate and prevent disastrous contingencies," George Washington wrote to John Jay in 1786, something had to be done. The result was a constitutional convention to create a new blueprint for a more powerful central government. Some early Americans were alarmed. Patrick Henry, a leading figure in the American Revolution, declared that he "smelt a rat." Many suspected — and more than a few hoped — that the convention would yield the first American king.
What did the convention produce?
A brilliant document, but one that was nonetheless forged out of "a bundle of compromises and a mosaic of second choices," as the late Cornell University historian Clinton Rossiter described it. To mollify the fears that large, populous states would dominate federal power, for example, small states were given the same representation in the Senate as much larger states. Slave states were allowed to count each slave as three fifths of a free man in calculating their representation in the House of Representatives, even though slaves were denied the right to vote. Despite lots of horse-trading and vague language, the Constitution was fully ratified only after a bitter, three-year national argument. Rhode Island initially rejected it, and Massachusetts and Virginia, the political and intellectual poles of 1776, both ratified it by narrow margins.
Is the resulting document clear?
It's anything but. As with the Bible, different readers can find different meanings in the same text. The Second Amendment clearly guarantees "the right of the people to keep and bear arms" but also says the "militia" can be "well-regulated." In the 21st century, what does that say about specific gun-control laws? The Commerce Clause gives the government the right to regulate commerce that crosses state borders, and another clause states that Congress has authority "to make all Laws which shall be necessary and proper" for the functioning
of the nation. Liberals argue that the Founders inserted this ambiguous language purposely, to make the Constitution an elastic and "living" document whose basic principles can be interpreted in a contemporary context. Originalists, such as Supreme Court Justice Antonin Scalia, maintain that current law must be strictly guided by the original intent of the Founders — and that such intent can be authoritatively discerned from the Constitution's language.
Which side is right?
Even the Supreme Court, the final arbiter of constitutional meaning, cannot make up its mind about the proper limits of federal power. Child-labor prohibitions were ruled unconstitutional by the Supreme Court in 1918, but upheld in 1941. In 1991, former Chief Justice Warren Burger said the National Rifle Association's interpretation of virtually unlimited Second Amendment rights was an obvious "fraud." In its 2008 Heller decision, the Supreme Court essentially adopted the NRA view. In the end, it seems fair to conclude that even great legal minds read their own political preferences into the Constitution. As Supreme Court Justice Joseph Story said in 1845: "How easily men satisfy themselves that the Constitution is exactly what they wish it to be."
The 'Constitution in Exile'
Many conservatives believe the Supreme Court took a wrong turn in the 1950s and '60s under Chief Justice Earl Warren, when the court issued expansive constitutional interpretations of federal power and expanded the rights of criminal defendants and minorities. But a smaller number of conservative critics argue that the trouble actually began in the late 1930s. That's when many of President Franklin Roosevelt's New Deal policies were upheld by the court, paving the way for a more powerful federal government. "I think what is really needed here is a fundamental intellectual assault on the entire New Deal edifice," said Michael Greve, a scholar at the conservative American Enterprise Institute. "We want to withdraw judicial support for the entire modern welfare state." In the view of those aligned with what's sometimes called the "Constitution in Exile" movement, a host of policies, from minimum-wage laws to Social Security to the Clean Water Act, are flatly unconstitutional. And the Constitution won't be restored until business and economic regulations are undone and the federal government retreats to its pre–New Deal dimensions.
THE WEEK'S AUDIOPHILE PODCASTS: LISTEN SMARTER
- What would a U.S.-Russia war look like?
- Fall movie guide: All the films you should see in September
- Scottish independence is another financial crisis waiting to happen
- 10 things you need to know today: September 1, 2014
- Why the West should let Russia have eastern Ukraine
- 11 scientific studies that will restore your faith in humanity
- These real-life Rosie the Riveters changed the face of labor
- 7 things the world's happiest people do every day
- The next pandemic
- 9 Harvard dropouts who became fabulously successful
Subscribe to the Week