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The Coming War over the Constitution

By       Message Robert Parry     Permalink
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From Consortium News

Despite a few victories in the lame-duck session of Congress, Democrats and progressives should be under no illusion about the new flood of know-nothingism that is about to inundate the United States in the guise of a return to "first principles" and a deep respect for the U.S. Constitution.

The same right-wingers who happily accepted George W. Bush's shift toward a police state -- his claims of limitless executive power, warrantless wiretaps, repudiation of habeas corpus, redefining cruel and unusual punishment, suppression of dissent, creation of massive databases on citizens, arbitrary no-fly lists, and endless overseas wars -- have now reinvented themselves as brave protectors of American liberty.

Indeed, the Tea Party crowd so loves the Constitution that the new Republican House majority will take the apparently unprecedented step of reading the document aloud at the start of the new congressional session, presumably including the part about enslaved African-Americans being counted as three-fifths of a white person for purposes of congressional representation.

One also has to wonder if these "constitutionalists" will mumble over the preamble's assertion that a key purpose of the Constitution is to "promote the general Welfare." And what to do with Section Eight of Article One, which gives Congress the power to levy taxes, borrow money, regulate commerce among the states, and "establish an uniform Rule of Naturalization"?

If one were to buy into the Tea Party's interpretation of the founding document, you'd have to denounce such concepts as "socialism" and/or "intrusions" on states' rights.

Part of the Tea Party's mythology is that federal taxes are an unconstitutional imposition invented by modern-day "lib-rhuls," that the national debt is another new thing, and that regulation of commerce is outside federal authority.

Surely, there can be honest debates about what's the best way to "promote the general Welfare," or the wisest balance between taxation and debt, or the proper role of states in enforcing laws when there is a federal interest (as with Arizona's anti-immigrant "present your papers" law).

But the pretense of the Tea Party is that the U.S. Constitution is definitive on these points and that the Founders favored today's right-wing interpretation of the federal government's powers, i.e. that taxes, debt and regulation of commerce are somehow unconstitutional.

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Another curious "reform" from the new Republican House majority will be a requirement to specify what constitutional authority underpins every piece of legislation, a rather silly idea since every bill can make some claim to constitutionality even if the federal courts might eventually disagree.

But the larger truth that the Tea Partiers don't want to acknowledge is that the Constitution represented a major power grab by the federal government, when compared to the loosely drawn Articles of Confederation, which lacked federal taxing authority and other national powers.

The Founders also recognized that changing circumstances would require modification of the Constitution which is why they provided for amendments. Indeed, the primary limitations on federal authority were included in the first ten amendments, called the Bill of Rights. Subsequent amendments included the eradication of slavery and extending the vote to blacks, and later to women.

Civil Liberties?

Yet, while the Tea Partiers and the Right have embraced a mythical view of the Constitution as some ideal document that opposes federal power to tax, borrow and pass laws that improve "the general Welfare," they have been less interested in the document's protection of civil liberties, especially when the targets of abuse are Muslims, Hispanics, blacks and anti-war dissenters.

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Many on the Right have found plenty of justifications to trample on the rights of these minorities, even when the actions violate clear-cut mandates in the Constitution, such as the Fourth Amendment's requirement of "probable cause" before the government can engage in search and seizure and the Eighth Amendment's prohibition on inflicting "cruel and unusual punishment."

Especially when the Right's hero George W. Bush was violating those rights last decade, there were word games to explain the unexplainable.

For instance, in 2007, Attorney General Alberto Gonzales argued that "there is no expressed grant of habeas in the Constitution." But that was a point of sophistry since the Founders took habeas corpus rights for granted under English law and thus limited the reference in the Constitution to the extreme circumstances required before the government could suspend its need to justify a person's incarceration before a judge.

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Robert Parry broke many of the Iran-Contra stories in the 1980s for the Associated Press and Newsweek. His latest book, Secrecy & Privilege: Rise of the Bush Dynasty from Watergate to Iraq, can be ordered at It's also available at

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