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Elizabeth B. Wydra Headshot

What Boehner and the Tea Party Don't Seem to Understand About the Constitution

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With the start of the 112th Congress, Tea Party activists are brimming with pride over the fact that the new House GOP leadership will kick off the legislative session with a reading of the Constitution on the House floor. As a progressive constitutionalist, I wholeheartedly agree with the Tea Party and incoming Speaker John Boehner that reading the entire Constitution on the House floor is a fantastic idea. I also agree with Boehner's requirement that all bills in the House include a citation to the provision of the Constitution that supports the congressional power that would be exercised in the proposed legislation. But I am pretty sure that I am in complete disagreement with the Tea Party and its elected allies on where this focus on the Constitution will take us.

This is because, as renowned constitutional scholar Akhil Reed Amar recently told the Washington Post, when you "actually read the Constitution as a whole, it doesn't say what the tea party folks think it says." In fact, the Constitution as a whole is a remarkably progressive document.

You might have missed the progressive nature of our Constitution's text and history in the whirlwind of Tea Party rhetoric this past year. According to the "Constitution According to the Tea Party," the central government is weak and incapable of addressing national issues such as health care reform, environmental protection, and financial system reform. But the Tea Party's version of the Constitution has far more in common with the failed Articles of Confederation -- the dysfunctional, loose confederacy that was in place between 1776 and the Constitutional Convention of 1787 -- than with our actual, enduring U.S. Constitution.

To be sure, the powers of the federal government under our Constitution are not unlimited -- the Constitution establishes a central government of enumerated powers, and our States play a vital role in our federalist system -- but the powers our charter does grant to the federal government are broad and substantial. And, since the Founding, the American people have amended the Constitution to ensure that Congress has all the tools it needs to address national problems and protect the constitutional rights of all Americans. Eight separate amendments expanded the enumerated powers of the federal government, giving vast powers to the government to protect equality, civil rights, and voting rights, and to raise funds through taxes on income. Many Tea Partiers disdain these Amendments -- or even want to repeal them -- but they are just as much a part of the Constitution as the language written in 1787. When the new members of Congress are sworn in this week, they will swear to uphold the entire Constitution, not just the parts written in the 18th century.

So when members of the House read the entire Constitution this week, we should all follow along, and members of the House should embrace the requirement that they cite constitutional authority for proposed legislation. Prominent progressive commentators such as E.J. Dionne and Greg Sargent have correctly noted that progressives should welcome a battle with the Tea Party over the Constitution. A great way to do this would be for members of the House to use these constitutional authority statements to tell the progressive story of our Constitution. Here are a few constitutional grants of authority to Congress that could be used to support key progressive policies (this short list is by no means exhaustive, and I encourage suggestions for other provisions and policies in the comments):

• The "Power to lay and collect Taxes" to provide for the "general Welfare of the United States" (article I, section 8), which gives the federal government broad authority to further national policies, such as ensuring health care for the poor (Medicaid) and provide security for older Americans (Social Security).

• The power to establish "an uniform rule of Naturalization" (art. I, § 8), which means that only Congress can enact immigration reform, and also that state anti-immigration laws, like Arizona's SB 1070, are an unconstitutional infringement of Congress's exclusive power to regulate immigration.

• The power to "regulate Commerce with foreign Nations, and among the several States" (art. I, § 8), which gives Congress the power to regulate interstate commerce, for example, the national health care industry.

• The crucial power to "make all Laws which shall be necessary and proper" (art. I, § 8) for carrying out all constitutional powers granted to the federal government, which means, for example, that Congress can require individuals who can afford it to obtain health insurance in order to carry out its authority to regulate the interstate health insurance industry and ensure affordable, non-discriminatory health care.

• The power "to enforce, by appropriate legislation" (amendment XIV, § 5) the provisions of the 14th Amendment, provisions that guarantee birthright citizenship; protect the "privileges or immunities of citizens of the United States" (which were understood by the framers to include personal liberties such as the right to marry and form a family); require "due process of law," and guarantee the "equal protection of the laws" (amendment XIV, § 1). This text provides Congress with constitutional authority to enact profoundly progressive legislation, for example, prohibiting employment discrimination on the basis of race, gender, or sexual orientation, or outlawing certain hate crimes.

• The power to "enforce . . . by appropriate legislation" the right of U.S. citizens to vote free from discrimination based on "race, color, or previous condition of servitude" (amendment XV) or "on account of sex" (amendment XIX), which gives Congress the authority to enact measures such as the Voting Rights Act of 1965 (lately under constant attack in the courts).

Reading the entire Constitution, as the House will do this week, leaves the unmistakable impression that our constitutional story is inherently progressive. "We the People" have taken a great but deeply flawed original national charter and made it even greater -- creating an even "more perfect union"--by writing into our Constitution, through the amendment process, the abolition of slavery, expanded democracy, and fundamental equality and liberty. Because the text and history of our Constitution are fundamentally progressive, there is no need for those on the left to shy away from Speaker Boehner's requirement that all bills contain a citation to the constitutional grant of authority that allows the proposed legislation. Progressives should cheer the new Republican-led House's embrace of the Constitution -- and hold all members of Congress to their oath to be faithful to it, all of it.