Avoid the Constitution?

“Republicans: Enlist, but Avoid Speeches on the Constitution.” That’s the way the headline writer for the New York Times encapsulated the advice of one of its reporters, Kate Zernike, in a dispatch over the weekend. “The trick,” she writes, “is to take advantage of the Tea Party passion and stay away from its extremes. Celebrate the genius of the Constitution, but don’t get into the particulars.”

Ms. Zernike goes on to quote the political sage Stuart Rothenberg as saying he reckons it’s “very clear” that “what’s best for the election” is to focus on President Obama, Speaker Pelosi, health care, and the deficit. “You see these rallies and the signs are all about the Constitution,” Ms. Zernike quotes him as saying. “They want it to be about these big ideological ideas, when I don’t think most voters think that way.”

Hmmmm. Our own view is that Ms. Zernike and Mr. Rothenberg are selling the voters short. We don’t belittle their own credentials. Ms. Zernike is the author of a new book on the Tea Party, “Boiling Mad,” which is well up on the Amazon.com list. Mr. Rothenberg is the publisher of a non-partisan political report. But everywhere we’ve gone lately where the conversation or the speeches turn to the Constitution, the place lights right up.

The idea that the constitutional principles are beyond the ken of the American people strikes us as not only condescending but inaccurate. The history of constitutional law is a long oeuvre of cases that were brought by citizens with no special training in the law, and more often than not no fame or special stature. Think Clarence Earl Gideon on the right to counsel, Oliver Brown on school integration, Norma McCorvey, who entered the captions as Jane Roe, on abortion, to name but a few.

A common feature of these cases is that the constitutional principles on which they were fought were clearly understood by, perceived by, believed in by, people with ordinary problems. What was extraordinary was the grit to stand on principle through long court battles and the willingness to gamble on the parchment that emerged from Philadelphia that summer of 1787. Today all over the country, people are looking to the constitution and talking about it.

In Utah and Montana, among other states, legislators recently passed laws to protect fire-arms manufacturing and distribution from regulation by the federal government. The way they are doing it is delineating those weapons that are manufactured and sold in-state, never having been entered into interstate commerce. There is a whole multi-state movement to get such laws passed at the state level, precisely because people are paying attention to the Constitution.

They are reacting to the fact that the only enumerated power that lets Congress come into a state with federal regulation is the commerce clause, and they figure that if a weapon is manufactured and sold in-state, it’s none of Uncle Sam’s business. By one count, more than half the states in the union are considering such a law. They can’t be all that indifferent to constitutional principles.

Another movement, however embryonic, is starting to form around the power that was, in Article 1, Section 10 of the Constitution, reserved to the states to make gold and silver coin legal tender. This is but a tiny movement at the moment. But with the value of the dollar having collapsed to but a 1,200^th of an ounce of gold, millions of people are starting to wonder about what the Constitution says about the dollar — does the constitution permit the printing of money indefinitely, even in a time of eonomic crisis?

The same with the battle over Obamacare. It was breathtaking to see the speed with which the Democrats in the Senate brushed aside the constitutional point of order that was raised by Senators DeMint and Ensign as the bill was nearing passage in the upper chamber. Where in the Constitution does the Congress get the authority to require an American to purchase health insurance? Senator Baucus, speaking for the Democrats, insisted it was a slam dunk under the clause that grants power to regulate commerce among the several states.

It turns out, however, that at least two federal courts are going to require that the question go to trial, and, when it gets to trial, it will grip the nation. Just as the same-gender marriage case known as Perry v. Schwarzenegger is doing. And just as did the case of Dick Heller, a retired security guard in Washington D.C. who wanted to be able to keep his own gun in his own home and won, in the Supreme Court, rights under the Second Amendment that had been cloudy for more than a century. All over the country, we sense, people are following these cases with interest and understanding.

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So when the GOP is counseled not to get into these questions, we would say take that advice with a grain of salt. The rising stars on the right this season are crafting a whole movement around the phrase “constitutional conservativism.” That is the stock phrase being used at every stop by Sarah Palin. People like to belittle her learning. But she knows what she’s doing. She's not trying to impose their religion or their social values. She, and others in her movement, are trying to restore the idea of constitutionalism, the idea that the Constitution through which the people granted power to the Congress also enumerated those powers, so as to limit them, and laid down on the Congress certain prohibitions, most famously the Bill of Rights but also Article 1 Section 9 of the Constitution. Those who have taken their focus off these principles are the ones who are in trouble today. The ones who are making speeches about them are prospering. The advice to avoid the Constitution is advice from a quarter that doesn’t wish them success.