October 23, 2010
How the Constitution Is Read
There is an obvious disconnect concerning the Constitution between the Tea Party crowd and the establishment of both major political parties. This was evidenced most recently in a clip on CNN of an exchange between Eliot Spitzer and Dana Loesch. Loesch is a founder of the Saint Louis Tea Party and Editor in Chief of Breitbart's Big Journalism. Ostensibly, Loesch had been invited on the Parker Spitzer Show to discuss the upcoming election and the role of Tea Party organizations in the campaigns, but for Spitzer, it was an ambush, and it didn't take him long to drop the gloves and come out swinging.
Spitzer: I don't mean to be snarky about this, but we heard Christine O'Donnell today in, you know, your Senate candidate from Delaware saying separation of church and state was not in the Constitution, either. So, maybe the Tea Party's working off a different Constitution. We'll wait and see.Loesch: It's not. No, it's not. That phrase isn't in the Constitution at all. That phrase is not in the Constitution.
Yes, they are working off a different Constitution, and that will be shown as the crux of the brewing battle between the Tea Party movement and the politicians in office. For reference, the First Amendment reads:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
The confusion arises from the different methods of reading the Constitution. Spitzer is relying, as most lawyers and politicians do, on case law ruled on by myriad judges and justices taking into account precedent and stare decisis. Loesch is relying on a literal reading of the same document, where clear sections have been litigated out of use -- in this case, the part of the First Amendment which reads "or prohibiting the free exercise thereof." Tea Partiers, like Loesch, see that for what it is, an administrative omission, a tactical obliteration without taking the necessary steps to amend the amendment.
"[P]rohibiting the free exercise thereof" would seem to mean exactly that. Due to the fact that this phrase comes after the non-establishment clause, it would seem to clarify the meaning. In essence, since the federal government cannot establish a religion, it also does not prohibit the free exercise thereof. The federal government cannot hinder one's free exercise of his own religion, i.e., not in the classroom, the jury box, the bench, or the museum, for that matter. In fact, it would seem that such places in government are expressly prohibited from limiting that freedom, whereas some private organization might indeed prohibit religious expression.
The part of the amendment that Spitzer is focusing on is the non-establishment clause, but it has not been made clear what "establishment" means. To a literalist like Loesch, "establishment" means to create a Church of the United States, just as there was a Church of England, in which taxes were raised to provide a budget for the church. Theoretically, a citizen could be made to attend, contribute, and even pray. Freedom from the Church of England was a motivating factor in the development of America, so it is quite clear to the average intellect that the founding fathers would not like to create the same monster on the new shore. Far from trying to exclude religion from government, even a cursory reading of the works of George Washington or Benjamin Franklin would lead one to believe that, specifically, the Christian religion was integral to the soul of the new union, not banished from it as Spitzer apparently believes.
A complicating factor in the discussion is that lawyers and judges naturally give weight to their own decisions, to case law, to precedent. Where judicial activism is clear, as in the instance of the First Amendment, the rulings have less and less meaning for the literalist. Corruption of intent is not a justification for denial of rights; otherwise, there never could be the social developments in society wherein the people, and ultimately the courts, discover that outdated and irrelevant rulings no longer apply. See slavery.
The truth, perhaps, is somewhere in the middle. There are some aspects of amendments that have been clarified by case law. Some of these cases are merely a commonsense approach to the rigidity of the wording, but the battle between these two visions of the Constitution is just getting started.
The Tea Party movement is not populated by the dim-witted, as the media would have one believe. The founders and organizers, like Loesch, have done the hard work of educating themselves on the Constitution. They have brought in constitutional scholars to "brief" their organizations. The mainstream American might be surprised to find how many constitutional scholars actually agree with the Tea Partiers. It is not for a lack of understanding that this question is brewing; it is actually a conflict of visions on how to give a full reading of the document.
T.L. Davis is a novelist, a contributor to the Washington Rebel blog, and the author of The Constitutionalist: Rights To Die For.