A couple weeks ago, The Weekly Standard published my essay on a split among Tea Party members on fundamental constitutional questions. As I tried to explain there, the Tea Party combines two very different views of the U.S. Constitution:
One contingent of the party is focused on liberty against both federal and state regulation, and see the Constitution as a tool for beating back regulation at all levels of government. Michele Bachmann endorses this view: in her opinion, both Obamacare and state health care mandates (like “Romneycare”) are unconstitutional.
The other contingent believes that the Constitution protects federalism, or states’ rights, and thus limits the federal government but gives the states free rein to regulate (or not) to their hearts’ content. Rick Perry and Mitt Romney — both former governors, and thus unsurprisingly supportive of state autonomy — endorse this view. To them, Obamacare at the federal level is unconstitutional, but the Constitution does nothing to stop states from imposing similar mandates themselves.
The Perry-Romney view — federalism first! — certainly is consistent with mainstream conservative legal thought, which has focused on the Constitution’s Commerce Clause and the Tenth Amendment as bedrocks of federalism, and which has declined (in the aftermath of the Warren Court’s excesses) to wield the federal Constitution as a sword against state regulation.
But Perry’s and Romney’s embrace of this view leads them to invoke the very same themes that the left-leaning Progressive movement invoked a century ago: the states as “laboratories,” the need for federal courts to leave states alone, and so on. Given the conservative movement’s general disdain for the Progressive Era, this is a truly ironic scene.
My new post for the Standard‘s web site reiterates this theme, with respect to Perry’s latest constitutional controversy. He is taking heat from some pundits for endorsing a constitutional amendment that would give Congress a veto over Supreme Court decisions. Contrary to some of his detractors (and supporters), this proposal is not inherently right-wing — as demonstrated by the fact that this was a core plank in the Progressive Party’s 1912 platform.
Addendum: Someone reached this post by googling, “is Perry a progressive?” The answer is – obviously – no. In a similar vein, the constitutional reform he’s proposing isn’t inherently “liberal,” Jonathan Chait’s assertion to the contrary notwithstanding. Perry’s urging a structural constitutional reform that is neither inherently conservative nor inherently liberal/progressive. Like most structural constitutional reforms, it can be a means to both conservative and liberal/progressive ends.