A popular refrain of those who proudly align themselves with the Tea Party is that they are just simple folk, who want to “adhere to the Constitution”. The chief object of their recent conversion to constitutional citizen-scholars is, of course, the Patient Protection and Affordable Care Act (ACA). They stubbornly maintain to the contrary, despite a validating Supreme Court decision, a lost presidential election, and a complete congressional failure to repeal, that it is unconstitutional.
The reason they say the ACA is unconstitutional is simply because they disagree with it – not because they actually know anything about the Constitution. They never cite any legal reasoning beyond laying claim to “adhering” to the document, yet have no problem disregarding said document when a Supreme Court decision does not confirm their prejudices or validates their ignorance. Their “understanding” of the Constitution is emotionally charged – a potent mix of fear, gauzy myth-steeped nostalgia, and some deranged maudlin species of pride. This mutant pride indulges a fetish for Revolutionary-era cosplay, complete with teabags dangling from their headgear like a bicentennial Minnie Pearl. This heightened emotionalism, ably aided by an age-old alliance with demagoguery and propaganda, triumphs over any semblance of reason.
If they should ever actually read the document, the powers of Congress are mostly outlined in Article I, Section 8. This is one part – certainly not the only one – where these authoritarians (who do not merit the appellation “conservatives”) ignore the actual text and its array of specific but significantly broad powers, supported by over 200 years of well-established precedent and jurisprudence. The four justices who ruled against the ACA belied the idea that justices are impartial, and in fact, prove that conservative justices are the real “activist” judges, trying to impose their 18th century ethos upon the 21st century. Antonin Scalia’s idea of jurisprudence was to brand the health insurance mandate as a slippery slope to forced purchases of broccoli. This was just a backhanded way of disagreeing with the ACA without using an actual legal argument.
The core reason the Tea Party cannot declare the ACA unconstitutional is not simply by basing their argument on gut feeling or a hysterical fear of socialism. It cannot be nullified by a Minuteman dress-up party crashing the National Mall. If they could just push those teabags away from their eyes for a moment, to review something every eighth-grade student of U.S. Government should know: Supreme Court Chief Justice John Marshall, in the 1803 case Marbury v. Madison, defined for all time how our republic determines a law’s constitutionality when he applied the concept of judicial review.
This is a case not only drilled into our heads several times in secondary school, but no first-year law student could hope to pass if they are unable to recite Marshall’s opinion in their sleep. Judicial review distilled in simplest terms: A law is constitutional if the Supreme Court says so. The only end runs around that are repealing the law, amending the Constitution, or hoping some future Supreme Court overturns it based upon the reviewing of a new case. That is it.
All the tea in the imaginary Boston Harbor of their minds cannot change that.
Since the would-be citizen-scholars of the Tea Party are fond of quoting dead men in powdered wigs, here is one by Justice Marshall’s cousin and political rival Thomas Jefferson, who would have no use for the minions of the teabagger idiocracy flinging their wild monkey poop all over the place:
“I am not an advocate for frequent changes in-laws and Constitutions. But laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.”
The Tea Party, judging by their boorish behavior, sub-literate signage, and coded rhetoric at rallies and town hall meetings – all further sanctioned via their purchased blow-up dolls on Fox News and in the chambers of Congress, are the present-day barbarians. Those of us who have evolved, reject their mistaken form of “originalist” fundamentalism, and will fight them every step of the way from dragging the rest of us back into their warped mythic-nostalgic wet dream. Tri-cornered hats and large buckles are no substitute for an eighth-grade grade civics education.