Rank and file members of the tea party have no idea what the Constitution they purport to revere actually says. Don't believe this? Watch this damning video produced by Constitutional Accountability Center's Brooke Obie, who was at the Court with a video camera for oral arguments over the Patient Protection and Affordable Care Act (ACA), and get back to me.
The question is will the tea party win anyway? Progressives need to wrestle with this question as we await the Supreme Court's end-of-the-term rulings.
Back in the year 1900, political humorist and sketch artist Finley Peter Dunne spoke through his fictional character Mr. Dooley, saying that "the Supreme Court follows the election returns." Since at least that time there has been a great deal of discussion and focus upon the impact of public opinion on the Supreme Court's rulings.
We saw this in the run up to the ACA arguments. The media pored over polling showing that the Act itself was unpopular, and, even more strongly, that Americans believed the minimum coverage provision (aka the "individual mandate") was an unconstitutional exercise of congressional power. The numbers are indeed dire for supporters of the Act. According to a Gallup poll, Americans overwhelmingly (72 percent to 20 percent) think that the minimum coverage provision of the Affordable Care Act is unconstitutional, with even a majority of Democrats, and a majority of those who think the healthcare law is a good thing, opining negatively. Other polls show a much smaller gap, but this much is clear: if the Court wavers with winds of public opinion, the minimum coverage provision is in real trouble.
This has generated a lively debate about the role this polling will and should have on the Supreme Court's consideration of the challenges to the Act. While the Act's supporters (see this thoughtful piece by Barry Friedman and Dahlia Lithwick in Slate) and challengers (see this equally thoughtful response by Randy Barnett at the Volokh Conspiracy) agree that the Court should, in an ideal world, ignore this polling and decide the case purely on the legal merits, they also both recognize the reality that the Act's negative polling may provide "breathing room" for the Court's conservatives, who seem inclined to want to strike the Act down. Rightly or wrongly, there is a broad consensus that the Justices are at least attuned to public opinion when rendering their legal judgments.
That's why there is an important lesson for progressives in the ACA polling. As "The Tea Party vs. The Constitution: ObamaCare Edition" illustrates, there is an enormous gap between tea party activists' fervor about the Constitution and what is actually in our Nation's founding charter (for more on this, read CAC's Strange Brew: The Constitution According to the Tea Party). The problem with polling on the public's views about matters of constitutional law is that these views are more likely to be based on which side is screaming most loudly about the Constitution than what the Constitution says and appropriately means. But, if polling and public opinion matter in terms of Supreme Court decision making, then progressives ignore this public debate at our own peril. And, the truly atrocious poll numbers for the Affordable Care Act reflect the concerted effort by conservatives to attack the Act's constitutionality, while progressive leaders refused to take this threat seriously enough to make a compelling public case for why the Act falls squarely within the powers of Congress granted by the Constitution's text, as exercised at critical points throughout America's 220-year history.
The tea party has no idea what's in the Constitution, but that is all the more reason why progressives cede the text and history of the Constitution to tea partiers at our own risk.
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