Though the Supreme Court has a rotating line-up, snazzy uniforms, and the occasional wide-eyed rookie, the start of a new session still lacks the pageantry of opening day. This year was no different, though with the rise of the Tea Party, one might have expected otherwise. The Supreme Court building is the Yankee Stadium of constitutional interpretation, and Tea Party members have been waving our founding document for a while now. No one can doubt they have taken the Constitution to heart, yet it remains to be seen whether they also take the Constitution seriously.
Consider a recent promise by Tea Party favorite Christine O'Donnell. She said that, if elected to the Senate, "the litmus test by which I cast my vote for every piece of legislation that comes across my desk will be whether or not it is constitutional." Particularly in light of O'Donnell's more memorable statements, this one seemed rather unremarkable on the whole, pretty uncontroversial as well.
Not, however, to Slate's legal correspondent, Dahlia Lithwick. "How weird is that," she said, "Isn't it a court's job to determine whether or not something is, in fact, constitutional?" Lithwick went on to note a 2003 statement in which O'Donnell compared the Supreme Court to a "constitutional monarchy" in light of the last word they have on constitutional disputes. "I do wonder a little whether she's claiming that her view of what's constitutional trumps theirs," Lithwick averred, "Not a lot of space for checks and balances in that reading."
This is not an unreasonable interpretation of O'Donnell's words. The same cannot be said, however, for Jonah Goldberg's interpretation of Lithwick's interpretation in his New York Post column over the weekend. Citing Lithwick and observations by others that O'Donnell's remarks reflect a misunderstanding about the constitutional role of checks and balances, the conservative commentator asked, "Does anyone, anywhere, think legislators should vote for legislation they think is unconstitutional? Should presidents sign such legislation into law?"
If this seems like a non sequitur to you, you're not alone. In one dubious logical leap, Goldberg moved from a debate over who should have the final word on what is constitutionally permissible to an assumption that one side thinks the question is largely irrelevant. (You can guess whose side this is.)
Stranger still are the two examples Goldberg provides for this position: one undeniable, the other dodgy at best. The first is President Bush's signing of the McCain-Feingold Campaign Finance Bill despite what he called "legitimate constitutional questions" that he left to the courts to sort out. At the time, Mitch McConnell was incensed by President's decision, but he said that he was "consoled by the obvious fact that the courts do not defer to Congress on matters of the Constitution," a statement that puts the Senate Minority Leader firmly in Lithwick's camp on who should get the last word on constitutional matters.
Goldberg's second, less convincing example comes from the health care debate. He cites a press conference last year where a reporter from a conservative website, CNS News, asked Nancy Pelosi "where specifically does the Constitution grant Congress the authority to enact an individual health insurance mandate?" The Speaker was clearly caught off guard by the question and twice replied "Are you serious?" before moving on.
What to make of this non-response? Was Pelosi trying to duck a hard question? Was she annoyed by a questioner who was trying to trip her up? The answer is unclear -- except, it seems, to Jonah Goldberg, who concludes, "Nancy Pelosi thinks the Constitution has as much relevance as a pet rock."
What Goldberg neglects to mention is that Pelosi's Press Secretary followed up with CNS after the news conference, sending them a press release citing the commerce clause as giving the Congress the constitutional authority to mandate the purchase of health insurance. In light of this, the incident seems to prove exactly the opposite of what Goldberg thinks it does. Far from refusing to defend the full constitutional fitness of the Health Care bill, as President Bush did with campaign finance, the Speaker was prepared to do just that (just not the moment it was demanded of her).
Now, this may cause Jonah Goldberg and others to roll their eyes. To them, Pelosi's being unprepared to defend the constitutional legitimacy of the most sweeping piece of domestic legislation in 40 years seems at best, well, unserious. Maybe, but particularly given the fact that her office ended up making such a defense, the critique seems more a matter of style than substance. It is not that Pelosi should be blamed for supporting a bill she believed to be unconstitutional; she should be blamed for not having a cogent defense of its constitutionality on the tip of her tongue.
And this is the point where the real split between Lithwick and Goldberg comes into view, not so much on whether politicians should be expected to provide such a defense, but whether we can reasonably expect them to do so capably and on cue. Indeed, Lithwick's response to O'Donnell seems to have as much to do with the ability of O'Donnell -- or, for that matter, most anyone else -- to ably articulate constitutional law as it does with her possible views on the role of checks and balances. This stuff is really hard she seems to be saying, and to her mind, it's just "weird" that someone would think otherwise
Though he never addresses this concern directly, the way Goldberg disposes of the debate at the end of his column suggests the opposite view. "The real issue is quite simple," he concludes, "If more politicians were faithful to the Constitution, the government would be restrained."
When Goldberg says this, I don't doubt that he speaks for a lot of people who identify with the Tea Party, claim to champion "constitution values," and see those values as synonymous with limited government. The problem is that what he takes as a "simple" assumption about the ambit of the federal government's powers is exactly what's at the heart of so many constitutional disputes, not the least of which being the one over health care. Moreover, by suggesting the Constitution is clear on such matters, Goldberg emboldens Tea Party members to champion the constitutional values most convenient to their beliefs without suggesting there is any need to defend or even explain them. Indeed, on his account, why would you? If the meaning of the Constitution is so obvious, anyone who disagrees with you about it is either disingenuous or a fool.
Such an approach lends itself to sloganeering, but not to taking the Constitution seriously. And herein lies the test for the Tea Party. No doubt, Americans cannot be reminded enough how blessed they are to have been guided by the original wisdom of the Constitution and the occasional midcourse correction of the 27 amendments. But taking the Constitution as seriously as the Tea Party members would have us does not begin and end with love letters to the Constitution and "commonsense" claims about what the document stands for. It means being prepared to make and defend Constitutional claims with sophistication and nuance, not treating them as so patently obvious they stand in no need of defense.
Christine O'Donnell and other Tea Party candidates have not been afraid to make claims about what the Constitution means, and if they want to get in the game and engage those who interpret the Constitution differently, I'm all for it. Cheering from the stands is all well and good, but hitting a big league fastball -- now that's something to get excited about.
John Paul Rollert is a student at the Committee on Social Thought at the University of Chicago and will soon graduate from Yale Law School. His essay, "Reversed on Appeal: The Uncertain Future of Obama's "Empathy Standard," is forthcoming from the Yale Law Journal Online.