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Tea-ing Up The Constitution

Publication Date: 
March 12, 2010
The New York Times
Adam Liptak

Dean Larry Kramer talked to Adam Liptak at the New York Times about "popular constitutionalism" in the context of the "Tea Party movement":

Brash and young though it is, the Tea Party movement has already added something distinctive to contemporary political discourse. It has made the Constitution central to the national conversation.

The content of the movement’s understanding of the Constitution is not always easy to nail down, and it is almost always arguable. But it certainly includes particular attention to the Constitution’s constraints on federal power (as reflected in the limited list of powers granted to Congress in Article I and reserved to the states and the people the 10th Amendment) and on government power generally (the Second Amendment’s protection of gun rights, the Fifth Amendment’s limits on the government’s taking of private property).

Not a few constitutional scholars say that it is possible to quarrel with the particulars while welcoming the discussion. And not just because it is nice to know that people read and care about the nation’s sacred text. The larger point, these scholars say, is that the Supreme Court should have no more monopoly on the meaning of the Constitution than the pope has on the meaning of the Bible.


...“Basically, it’s the idea that final authority to control the interpretation and implementation of constitutional law resides at all times in the community in an active sense,” Larry D. Kramer, the dean of Stanford Law School, wrote in The Valparaiso University Law Review in 2006.

Popular movements have often appealed to the Constitution in making their cases, and from time to time their views have altered the conventional understanding of the meaning of the constitutional text. Abolitionists and secessionists both invoked the Constitution before the Civil War; a century later, civil rights leaders appealed to principles of equal protection, and their opponents to states’ rights. Supporters and opponents of the New Deal pointed, respectively, to the reach of the Constitution’s commerce clause or to the Constitution’s protection of private contracts.


It is, of course, hard to say anything definitive about the Tea Party movement, a loose confederation of groups with no central leadership. But if there is a central theme to its understanding of the Constitution, it is that the nation’s founders knew what they were doing and that their work must be protected. “I think it’s some loose, ill-informed version of originalism, but it’s plausible,” said Professor Kramer, the author of “The People Themselves: Popular Constitutionalism and Judicial Review.”