Elena Kagan’s confirmation hearings this week were the first of the Tea Party era. When Republicans pressed Kagan on the Constitution’s commerce clause and whether she was a legal progressive, they were speaking not just about academic abstractions, but about the very ideas that animate the rebellious, conservative movement.
The Tea Party is often called "loosely organized," but the unifying philosophy for groups across the country is a belief that the nation can solve its problems — primarily its economic problems, which is what its supporters care most about — if lawmakers stick to a strict interpretation of the Constitution.
Tea Party groups hand out pocket-size copies of the Constitution like party favors at their rallies and meetings. Many supporters take classes about it on weekends, in the evenings or online, sponsored by groups like As a Mom, a Glenn Beck-inspired "Sisterhood of Mommy Patriots," or the Campaign for Liberty, which Rep. Ron Paul created after his unsuccessful run for president in 2008.
They can recite parts of the Constitution by heart and refer to it, by article and section, in casual conversation. They campaign for candidates who promote themselves as "constitutional conservatives."
The party has found as its tribune Rand Paul, the Republican candidate for Senate in Kentucky and the congressman’s son, who argues that Congress could balance the budget if it just got rid of all the programs that are not authorized by the Constitution. In the strict interpretation being taught in Tea Party groups, that would include just about all the legislation passed since the New Deal — Medicaid and Medicare, Social Security and student financial aid.
Paul says he would not vote for any legislation not specifically authorized by the Constitution. Similarly, the Contract From America, a Tea Party manifesto created by thousands of people voting online, would require every piece of legislation to identify "the specific provision of the Constitution that gives Congress the power to do what the bill does."
The center of the Tea Party argument is that Congress has usurped powers it was never granted in Article I, Section 8 of the Constitution, which contains what is commonly referred to as the commerce clause. The section mentions roughly 20, including the power to collect taxes, to pay debts, to "provide for the common defense and welfare of the United States," and to regulate commerce "with foreign nations, and among the several States, and with the Indian Tribes."
The framers also declared that Congress had the power "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof."
In the Tea Party view, everything went out of control with the New Deal as Congress, trying to ease the pain of the Great Depression and prevent another, passed legislation that progressives had been pushing for years, which included the regulation of banks and the establishment of a minimum wage and Social Security.
The Supreme Court struck down much of the initial legislation as unconstitutional, until President Franklin D. Roosevelt threatened to increase the size of the Supreme Court to 15 and pack it with appointees who supported his agenda.
Under that threat, Justice Owen J. Roberts reversed himself on a minimum wage case, called "the switch in time that saved nine," beginning a tide of decisions that supported the New Deal legislation.
Those decisions led to a broader understanding of what Congress can do under its powers to tax and spend and under the commerce clause. They have been the basis for the vast expansion of federal law in the last 80 years.
Tea Party constitutionalists argue that the commerce clause in particular has been pushed beyond recognition; originalist legal scholars agree. And The Wall Street Journal said on its editorial page this week that "if Ms. Kagan believes the commerce clause can justify nearly any congressional decision, this is reason alone to justify a vote against her confirmation."
The Tea Party’s more hands-off view of Congress’ power helps explain why Sharron Angle, the Senate candidate backed by grass-roots supporters in Nevada, has argued to phase out Social Security and Medicare, and why Rand Paul in Kentucky argued that the Americans With Disabilities Act was an example of federal overreach.
It is not that they want no government regulation; Tea Party supporters believe that much of what the federal government regulates should be left to the states, where voters hold a shorter leash.
For this reason, they embrace a strict interpretation of the 10th Amendment, which says that the powers not delegated to the federal government by the Constitution "are reserved to the states respectively, or to the people." And some believe that the 17th Amendment, commonly known as one of the "progressive" amendments, was wrong when it assigned the election of U.S. senators directly to the voters. The Constitution put that power with the state legislatures.
While giving that power back to state legislatures would seem to go against the Tea Party’s grass-roots nature, supporters argue that if senators were beholden to state legislatures, they would not, for instance, have passed President Barack Obama’s health care overhaul, which requires the expansion of state Medicaid programs.
Lori A. Ringhand, an associate professor of law at the University of Georgia who has analyzed what kind of questions have been asked at hearings for Supreme Court nominees over the last 70 years, said that in the past, senators on the left and right have asked about the commerce clause, concerned that the court would strip away congressional power.
This time around, when senators on the right asked, Ringhand said, "The concern seemed to be a desire for judicially imposed restraint."
For her part, Kagan tried to avoid answering any questions in a way that might jeopardize her confirmation. So, when Sen. Tom Coburn, R-Okla., asked whether Congress could pass a law under the commerce clause requiring Americans to eat three fruits and vegetables a day, Kagan answered the hypothetical by saying she thought it was a "dumb law."
But she did note that she believed the Supreme Court had said in decisions in 1995 and 2000 that Congress could not regulate noneconomic activity — a nod, perhaps, to the anti-government mood in the land.