The Constitution is not a Religious Text

From a sanitized 1950s paradise to Reagan the deficit hawk, modern conservative orthodoxy makes heavy use of a mythical American history. The fabrications are myriad: Hayley Barber recently tried to claim that citizen's councils drove integration efforts in the civil rights era south; cultural conservatives everywhere have claimed that the Civil War really had nothing to do with slavery; and the Texas Board of Education recently decided that Thomas Jefferson wasn't quite important enough to be considered a Founder. Other times, the history is true but ignores important changes that took place in intervening years: Republicans can't be racist because of Lincoln; Democrats must be racist because of Dixiecrats.

These fabrications are often easy to dismiss as typical political game play -- game play that GOP pols are often more willing to push to the ethical limits than their Democratic counterparts. After all, many Republicans have been vociferous in their belief that the insurance mandate in the Affordable Care Act is unconstitutional despite putting forward the idea as their own no more than two decades ago. And Orrin Hatch was recently caught reversing his stance on the DREAM Act, due to primary pressure on the right edges of his party.

Sometimes there is political advantage in distancing yourself from former beliefs. And one thing Republican strategists are not guilty of is incompetence -- at least in short-term politics.

But to dismiss conservative efforts to rewrite more distant history as the same sort of predictable political game play is to miss a more dangerous trend. Harvard historian Jill Lepore has argued that much of the animus behind the Tea Party movement -- specifically the central conservative governing doctrine of "originalism" -- is not so much traditionalism as fundamentalism. Just as religious fundamentalists make selective use of scripture to promote or even enforce their own narrow set of beliefs, historical fundamentalists scour the historical record for evidence supporting the rightness of their beliefs -- beliefs which invariably precede the search.

Anyone familiar with the conservative Twitterverse (#tcot, #tpp, #teaparty, #ampat, #ocra) know that the conservative grassroots have an elaborate mythology. The more insane have a version that views all activity by the Obama administration as an elaborate effort to destroy America by imposing socialism and promoting terrorism. Sadly, we will continue to listen to Glenn Beck weave this particular version of the story idefintely, since the left abhors censorship and FCC sanctions would only add credibility to the story among its believers. Alas, there is little point in addressing this type of insanity head on. Suffice it to say, this is clearly not what Obama is up to.

At the other end of the spectrum, though, is a more innocent-seeming originalism that pervades right-wing thinking. The crucial era for the movement is the founding era. The American Revolution lies at the heart of originalist beliefs. Indeed, the Tea Party take their very name from an act of defiance central to American folklore. As Lepore is careful to point out, this is not the first time that the mantle of the Revolution has been claimed by one group or another. At the bicentennial Boston Tea Party reenactment, a banner reading "Impeach Nixon" was unfurled over the side of the ship by left-wing activists claiming to be the rightful heirs of the Revolution.

No single strain of thought defines the Founders. Indeed, as the Texas curriculum debacle makes clear, there isn't even a definitive list of Founders. You can say, for example, that the United States is a "christian nation" but only if you ignore important figures such as Ben Franklin (who seems to have had no use for religion) and Thomas Jefferson (who cut all the miracles out of his bible, which included the Koran); and the well-documented debate on the role of religion in government that took place during the founding era; or the prohibition against religious tests set forth by the Constitution. You can say that the Federalist Papers make clear that the Constitution intends enumerated powers, but only if you ignore the equally prolific writings of the "anti-federalists" -- who refused to sign the constitution without a promise to add the Bill of Rights.

But there are other problems with originalism as well. As conservative David Frum -- who advised Bush but has recently been excommunicated from GOP circles for his rejection of conservative purity tests and "epistemic closure" -- reminded his readers on Thursday, the question "were the Founders Libertarians" is completely meaningless. To ask such a question ignores vast differences in historical context and over 200 years of scientific, cultural and political development. As Frum puts it: "This seems to me a question approximately as meaningful as asking whether the Founders would have preferred Macs or PCs: it exports back into the past an entirely alien mental category." As at least one tweeter suggested, it's like asking "was triceratops vegan?"

Despite the importance of the Revolution in the rhetoric of the movement, the most pervasive policy role in conservative originalism is played by the Constitution. The Republican-controlled 112th House will read the entire document as their first act; and all legislation in that House will be required to bear "constitutional justification." Ezra Klein takes this requirement to task in his Thursday column, arguing:

My friends on the right don't like to hear this, but the Constitution is not a clear document. Written more than 200 years ago, when America had 13 states and very different problems, it rarely speaks directly to the questions we ask it. [ ... ] as the seemingly endless series of 5-4 splits on the Supreme Court shows, even the country's most experienced and decorated constitutional authorities routinely disagree, and sharply, over what the text means when applied to today's problems.

Worse, as Steve Benen reminds us: "congressional Republicans haven't just endorsed bizarre legal concepts; they've advocated constitutional concepts that were discredited generations ago." The question of how the constitution enumerated and constrained federal power was hotly contested, even as Madison drafted the document and the states debated ratification.

So the right-wing response to Klein is as predictable as it is telling. The predictable part is that organizations such as Heritage conveniently made their own clause-by-clause readings of the Constitution available. The telling part is the simplicity that they attribute to the constitution -- and the certainty with which they make that attribution. This is representative of the historical fundamentalism Lepore warns of: the ideas precede the selection of evidence; and contrary evidence is ignored, vilified, marginalized or ridiculed. Indeed the very argument put forth by Klein -- that over a century of legislative action and judicial interpretation have rendered modern constitutional law inexpressible by the mere extraction of quotes from the document itself -- is entirely ignored in all the criticism.

The Constitution is not a religious text -- and it's certainly not a suicide pact. Nobody owns the Founders. And none of us is the rightful heir to the Revolution. Now is an important time for all of us to work together in solving America's difficult problems without all these games.

** Jill Lepore, (2010). __The Whites of Their Eyes: The Tea Party's Revolution and the Battle over American History__ http://press.princeton.edu/titles/9389.html