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Message to Progressives: Reclaim the Constitution!

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It is time for progressives to stand up to the radical right and proclaim: "It's our Constitution, too!"

The Tea Partiers and the radical libertarians cast themselves as so-called "constitutionalists" -- possessed with unique insight into the original meaning intended by the Framers and dedication to defending the Constitution's words against those who would ignore them in pursuit of progressive social policies. Increasingly, conservatives seek to frame the political debate as a contest between those who understand the Constitution (themselves) and those who don't.

For example, Utah's Tea Party Republican candidate for the Senate from Utah, Mike Lee, pledges not to vote for any bill "that I can't justify by the text and original understanding of the Constitution," as if his opponent has no problem defying the Constitution.

This right wing's assertion of "ownership" of our Constitution is playing out most dramatically on the issue of federal power vs. states' rights.

Take, for instance, the movement in state legislatures to enact so-called "Firearms Freedom" statutes. These bills, so far enacted into law in six states and proposed in over twenty others, declare that guns manufactured and possessed entirely within a state's borders are not subject to federal law. Under the Montana version, for example, a lucrative business awaits the Montana resident who wants to manufacture unserialized and untraceable guns for sale to Montana felons without complying with Brady Act background checks. Just stamp the guns "Made In Montana" and you are good to go.

There is little doubt that the federal courts will make mincemeat of these "Firearms Freedom" laws. The first ruling came down last week, as a federal magistrate judge in Montana struck down that state's law. Agreeing with the Brady Center's brief, the judge found the law flatly unconstitutional under decades-old Supreme Court precedent recognizing federal authority to regulate entirely intrastate activity if exempting that activity would undercut federal regulation of interstate activity. As recently as 2005, a conservative majority of the Supreme Court reaffirmed this precedent by recognizing federal power to prohibit the purely local production and medical use of marijuana authorized by state law.

The "Firearms Freedom" laws are more in tune with those who opposed ratification of our Constitution than with the Constitution itself. After all, one of the central concerns leading to adoption of our Constitution was that the earlier Articles of Confederation gave the Congress insufficient authority to legislate on behalf of the entire nation. The Anti-Federalists who opposed ratification did so largely because they opposed the new powers the Constitution conferred on the federal government. (Today's "Federalist Society" of conservative lawyers more accurately should be called the "Anti-Federalist Society.")

In fact, the contemporary right can legitimately claim "ownership" only of the losing side in the great constitutional debate over federal power vs. states' rights. Defending our Constitution means defending its specific grant of power to Congress to "regulate Commerce . . . among the several states" and to "make all Laws which shall be necessary and proper" for executing that power. It also means defending the Constitution's Supremacy Clause, by which federal law "shall be the supreme Law of the Land . . . ." Can there be any more direct expression of contempt for the Supremacy Clause than the premise of the "Firearms Freedom" statutes that individual states have the authority to determine for themselves the extent of federal power?

Nor can the right find refuge in the Tenth Amendment, which has inspired the passionate devotion of the Tea Partiers with little evidence that they have actually read its text. It provides only that "the powers not delegated to the United States by the Constitution" are "reserved to the States respectively, or to the people." Of course, nothing in these words diminishes the powers that are "delegated to the United States."

It is time for progressives to stand up to the right's misappropriation of our Constitution and to claim for themselves the label of "constitutionalists." After all, proponents of a stronger federal government were the winners of the Founding-era debate. The radical right of the modern era can trace its lineage only to the losers.

For more information, see Dennis Henigan's Lethal Logic: Exploding the Myths that Paralyze American Gun Policy (Potomac Books 2009)


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