USC Law prof., Cato legal scholar debate Tea Party, Constitution
by Darren Schenck
Does the Tea Party movement represent a return to the Constitution, or simply a discontent with the prevailing interpretation of it? Does a consideration of the framers’ intentions lead to a more accurate reading of the document, or merely reveal the areas in which the Constitution is unclear?
Dr. Roger Pilon of the Cato Institute
On Mar. 7, USC Law Prof. Michael H. Shapiro debated these and other questions with Roger Pilon, vice president for legal affairs for the Cato Institute and director of its Center for Constitutional Studies. The Federalist Society sponsored the lunchtime event.
Drawing on his recent Wall Street Journal article, Pilon said, “We are slowly moving back to the first principles of the Constitution, in part due to the emergence of the Tea Party.”
A return to first principles, Pilon explained, requires revisiting the intellectual underpinnings that informed the writing of the nation’s founders, particularly Thomas Jefferson and James Madison.
“The Declaration places us in the natural law tradition, the idea that there’s a higher law of right and wrong,” said Pilon, who then traced that tradition from antiquity through Rome, the Middle Ages, and the common law, culminating in the work of John Locke.
Americans long understood that the purpose of the Constitution was to restrict the power of the federal government, according to Pilon, a view that changed with the advent of the Progressive Era.
“Progressives no longer viewed the federal government as a necessary evil,” he said. “They saw it as an agent of good, an instrument for solving social and economic problems.”
Pilon said this embrace of government required turning the Constitution on its head.
“It made a document to restrain government into a document that is the servant of government, and that is what the Tea Party is rebelling against.”
Prof. Michael H. Shapiro
Pilon focused especially on the doctrine of enumerated powers, the limiting principle at the heart of the Constitution, which has reemerged as part of the public conversation due to the work of a few dedicated individuals in academia writing on the topic over recent decades.
“The Tea Party is calling for a revival of this doctrine,” said Pilon.
Shapiro began his remarks by saying that the recent reading of the Constitution in Congress was a symbolic gesture that meant nothing, since no one has been ignoring the document.
“The Constitution didn’t need to be rediscovered – it was there all the time,” Shapiro said. “It’s simply thought to mean something different by the Tea Partiers from what others think it means.”
Shapiro said constitutional issues have been debated “all the time.”
“My opponent’s side lost the historic debate,” he said.
Although he agreed with Pilon that the Constitution is not value-neutral, Shapiro said the document lacks specificity. He also said it allows for a spectrum of governance ranging from a strong central state to a loose collection of independent states.
“No overarching interpretive theory can lead you to the preferred form of federalism recommended by Dr. Pilon and the Tea Party,” said Shapiro. “It simply is not dictated by the Constitution.”
Shapiro also said the Constitution allowed for a huge increase in power for the federal government over what was provided for in the Articles of Confederation. He pointed to the constitutional directives to provide for common defense and to regulate commerce among the states as two mandates that have evolved as the country – and world – have changed.
“The Constitution is a document about governance, and governance is some people telling other people what to do,” Shapiro said. “Nowhere is liberty assigned the sole national priority.”
Revisiting the works of the nation’s founders reveals much dissent among them, including the competing visions of Thomas Jefferson and Alexander Hamilton, Shapiro said.
“If they were alive today, they’d still be arguing these issues,” he said.
In his response, Pilon said, “Prof. Shapiro’s thesis can be reduced to a simple proposition: The Constitution isn’t meaningless – but nearly so.”
Shapiro later countered: “To say the Constitution is indeterminate on some points is not to say it’s meaningless.”
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