14th Nervous Breakdown

My last post noted that the coverage of the Delaware senate debates had unfairly characterized Christine O'Donnell's comments on the First Amendment.  Perhaps even more egregious, however, was the lack of attention given to another of O'Donnell's answers to a constitutional question.

O'Donnell was asked in the same debate if she agrees with calls by other Tea Party candidates to repeal all or part of the 14th, 16th, and 17th Amendments to the Constitution.  O'Donnell was quick to deny any interest in repealing the 17th amendment—which is not a bad idea for someone running for senate, since it is the amendment that gave the voters, rather than state legislators, the right to choose senators. (For an earlier discussion of this issue, see here.)

What is noteworthy is the rest of O'Donnell's response.  She did not know what either the 14th or 16th Amendments were.  Laughing nervously, she said: “I’m sorry, I didn’t bring my Constitution with me.”  Doing her best impression of Sarah Palin, she tried to laugh off her ignorance and quipped: “Fortunately, senators don’t have to memorize the Constitution. Can you remind me of what the other ones are?"

That's true enough, memorizing the Constitution isn't a requirement for office.  But when you premise your candidacy in large part on your superior fidelity to the Constitution, is it too much to ask that you know what is actually in it?

After all, these are hardly the most obscure amendments.  I'll admit that I don't have all the amendments committed to memory either.  I could not tell you off the top of my head what, say, the 8th Amendment says (it bans excessive bail and cruel and unusual punishment).  But these two I know, as should someone like O'Donnell who self-identifies with the Tea Party.

The 16th empowered Congress to levy the income tax, the relevance of which to Tea Partiers is self-evident.  And the 14th Amendment has been much in the news, ever since Sen. Lindsey Graham (R-SC) proposed repealing its provision for birth citizenship.

But the 14th Amendment does far more than that.  It arguably represents the most important single change in the Constitution in American history.  It made clear that the states did not have the power to deny citizens any of the rights guaranteed by the Constitution.  It guarantees all of us due process rights and equal protection of the laws.

It was, in many ways, an answer to the states rights doctrine of the Confederacy, and it created one nation.  As Eric Foner writes in his authoritative account Reconstruction, 1863-1877, some amendments

are broad statements of principle, giving constitutional form to the resolution of national crises, and permanently altering American nationality.  The Fourteenth Amendment was a measure of this kind.  In language that transcended race and region, it challenged legal discrimination throughout the nation and changed and broadened the meaning of freedom for all Americans.

The reason that this amendment is so important, and the reason some radical conservatives might not be entirely comfortable with it, is that in the words of a contemporary observer, "the powers of the States have been limited and the powers of Congress extended."  It meant that the states "could no longer infringe upon the liberties the Bill of Rights has secured against federal violation."

Although it took nearly another one hundred years, the foundation established by the 14th Amendment is what made possible the Civil Rights Act of 1964 (whose constitutionality has been challenged by another Tea Party candidate, Rand Paul).

It is bad enough that a senatorial candidate today could be ignorant of what the 14th Amendment is.  It is even worse that a sitting senator from one of the states whose wholesale disregard of civil rights prompted it in the first place is proposing that we tamper with this essential amendment.  But worst of all is the fact that, in this bizarre election year, neither of these things seems to merit any notice at all (much less outrage) from the electorate.

O'Donnell, the First Amendment, and Constitutional Literalism

I think Christine O'Donnell is getting a bad rap.

I can't believe I'm starting a post with those words, but it's true.  Based on her comments in a recent debate with Chris Coons, her opponent in the general election for U.S. senator from Delaware, many reports and commentators suggested that O'Donnell was unaware that the First Amendment to the U.S. Constitution deals with religion.  When Coons referred to separation of church and state, O'Donnell asked “Where in the Constitution is separation of church and state?”

From listening to the exchange, it was immediately clear to me that O'Donnell was referring specifically to that phrase, not doubting that the First Amendment refers to religion.  This is a familiar refrain among conservatives who are opposed to that concept.  And, of course, O'Donnell is correct that that phrase does not appear in the Constitution.  Nor did Coons suggest that it does--he appropriately cited the establishment clause as it is written.

So what's going on here?  I think it is a matter of constitutional literalism. Since the precise words "separation of church and state" do not appear in the Constitution, constitutional literalists argue that there isn't really any such thing.

This mindset has a long pedigree, almost as old as the Constitution itself.  Its first coherent statement is Thomas Jefferson's "Opinion on the Constitutionality of a National Bank" in 1791.  (Ironically, Jefferson is on the opposite side of the church and state argument.)  Relying, as do today's Tea Partiers, on the Tenth Amendment, Jefferson maintained that unless a power were specifically delegated to the Federal government, it remained with the states.  He feared that anything but a strict interpretation of the Constitution would mean "Congress should be authorised to break down the most ancient and fundamental laws of the several States."

(This is the same basic view informing Republican attorneys general in their challenge to the new health insurance law: that the individual mandate is an unconstitutional usurpation of rights by the Federal government.)

The problem with such constitutional literalism is that Jefferson lost that argument with Alexander Hamilton back in 1791.  George Washington sided with Hamilton, Congress approved the national bank, and thereby established the practice of loose rather than strict construction of the Constitution.  When he later served as president, Jefferson himself sometimes invoked loose construction, most famously to justify the Louisiana Purchase.

It is that point that O'Donnell fails to understand: that the actual practice of governance has shaped what the Constitution means.  Coons, to his credit, did understand this and tried to explain it.  He knew that the phrase "separation of church and state" is not in the First Amendment, and noted that the concept has become part of our understanding of the application of the First Amendment via "decisional law by the Supreme Court over many, many decades."  He was correct that her focus on that single phrase showed a "fundamental misunderstanding of what our Constitution is ... and how it evolves."

In a 1947 case, Everson v. Board of Education, the Supreme Court's majority decision embraced the concept: "The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach."

If O'Donnell had any real understanding of the issue, anything beyond her smug, self-satisfied recitation of a talking point, she could have challenged the Court's reasoning in that decision.  But she has no such understanding. When asked in another debate what recent Court decisions she disagrees with, she could not mention a single one.  She promised to look some up and put them on her web site.

That is the real problem with O'Donnell's debate performance--not a specific case of ignorance of a well-known fact, but rather a incredibly simplistic understanding of the document that she says she will defend in office and have guide her every decision.  Like Sarah Palin before her (who was stumped by the same question about Court decisions in the Katie Couric interview), she is a profoundly unserious person.  And that, even in this strange election year, is a legitimate reason to deem her unqualified to hold public office.

Whigging Out? Christine O'Donnell v. Rand Paul

In my last post, I noted the similarities between the rhetoric of today's Tea Party and the Jacksonian Democrats of the 1830s and 1840s, while noting that some recent nominees claiming the Tea Party mantle, like Christine O'Donnell, complicate that picture. Many of the people who cast themselves in that role of Tea Party candidate don't always conform to the primarily fiscally conservative, small government positions of a Rand Paul. Candidates like O'Donnell who also adopt religiously informed policies not only break with the Jacksonian model, they expose the potential difficulty in turning the Tea Party into a coherent political force, and the problem that poses for the Republicans.

The Democratic Party's opposition in the 1830s and 1840s was the Whig Party.  Where the Democrats wanted small government, the Whigs favored an active federal government.   In their 1844 platform, they stated forthrightly their position: "The Whig party have always been distinguished from their opponents by the attribution of a beneficent and protective power to government."  Mostly, that meant their programs of a national bank and internal improvements (what we would call infrastructure).

There was another side to the Whigs, however.  They were also the party of religious evangelicals and moral reformers, and the followers of Jackson objected as much to that as to their economic program. Jackson biographer Robert Remini writes: "Democrats portrayed Whigs as bigoted and self-righteous religious fanatics intent on imposing their ethical values on others."

The Democrats, by contrast, were the party of what passed for "diversity" in those days. In the words of Daniel Walker Howe, winner of the Pulitzer Prize in History for What God Hath Wrought,  the Oxford History of the United States for the period 1815-1848 (who will also be the Lewis P. Jones Visiting Professor of History at Wofford College this coming spring), the Democrats "hoped America would remain culturally (that is, morally) heterogeneous, so that a variety of religious options could be exercised."

So a candidate like Christine O'Donnell, who made her name in religiously inspired organizations such as the Concerned Women for America, whose goal is to "bring Biblical principles into all levels of public policy" and SALT, the Savior's Alliance for Lifting the Truth, on some level more resembles a Whig than a Jacksonian.  O'Donnell has claimed that she has "heard the audible voice of God" guiding her politically, and she has a simple, black and white view of morality: "There's only truth and not truth.  You're either very good or evil."

Compare O'Donnell's record to Rand Paul's college exploits, involving marijuana use and worshipping the "Aqua Buddha."  While attending Baylor University, Paul allegedly belonged to a "'secret society' called the NoZe Brotherhood. The society was 'a refuge for atypical Baylor students' and enjoyed needling the school's administration and its piousness."  Can you get more pious than Christine O'Donnell?

Can we really call both of these people Tea Party candidates? Does the label mean anything coherent if it applies to both? Social and religious conservatives like O'Donnell dilute the economic message that Tea Party front men like Dick Armey want to emphasize in this election cycle, when the most important issue is the weak economy.  And libertarians like Rand Paul threaten to alienate the religious conservatives within the Republican Party.

The problem for the Republican Party is that it cannot afford to disown or alienate the religious wing that has been a key to its electoral successes at least since Ronald Reagan.  Reagan's two landslide victories in 1980 and 1984 forged a coalition of fiscal and religious conservatives which has never been entirely reconcilable since the Great Communicator left the political stage.  In the years since, the Republicans have been most successful when they have managed to bridge the gap between the two.  But that means tempering the extremes, and the Tea Party's greatest success this primary season has been to accentuate the extremes, giving us candidates such as O'Donnell and Paul.  The establishment did not choose either O'Donnell in Delaware and Paul in Kentucky, but the party is stuck with them.  If by chance they both wind up in the Senate, those unresolved tensions in the Republican Party may burst forth like never before.

"Gimme Eat"

One of the best things about my job is that it allows me to revisit books I've read and enjoyed in the past.  This is particularly true of my humanities class on banned books--there are plenty to choose from, so I can rotate new ones in every time I teach the class.

Last spring I decided I'd add Joseph Heller's classic war satire Catch-22. The title has of course become part of the American vocabulary. Even people who've never read the book or seen the movie know what it means: an illogical situation for which there is no solution.

But when I re-read it this summer, it was another scene in the book that seemed to capture this moment in American history. The ambitious Captain Black decides that the best means to a promotion is to show his unquestioned loyalty, which then leads him to require that everyone who comes to his intelligence tent sign a loyalty oath. Inevitably, the "Glorious Loyalty Oath Crusade" escalates to the point where "[e]very time they turned around, there was another loyalty oath to sign." Eventually, signing a loyalty oath was required before eating in the mess hall.

Into this insanity steps Major ______ de Coverley (his forbidding manner kept anyone from asking his first name). Finding his path blocked by men waiting to sign the oath, he

paused in the doorway with a frown of puzzled disapproval, as though viewing something bizarre. He started forward in a straight line, and the wall of officers before him parted like the Red Sea. Glancing neither left nor right, he strode indomitably up to the steam counter and, in a clear, full-bodied voice that was gruff with age and resonant with ancient eminence and authority, said:

"Gimme eat." ...

For several terrible seconds there was not a sound. Then Milo nodded.

"Give him eat," he said.... "Give everybody eat!" ... and the Glorious Loyalty Oath Crusade came to an end.

Ever since reading that passage this summer, I've been waiting for someone of some stature to step up and say "Gimme eat."

During the anti-Muslim hysteria of the last month, I hoped former president George W. Bush, who had said all the right words in the aftermath of 9/11, would reiterate them now, when we desperately need someone with credibility on the right to say them. But he remained silently in line.

As self-labeled Tea Party candidates, many with no real qualification for office other than being "anti-establishment," knocked off more reasonable primary opponents, I waited for some significant figure in the Republican Party to say "Enough! Politics is serious business, and it needs serious, reasonable people."

And last week, when I heard Karl Rove describing the Republican nominee for senator from Delaware, Christine O'Donnell as someone with a "checkered background," I thought perhaps the moment had come. He went on to say: "It does conservatives little good to support candidates who, at the end of the day, while they may be conservative in their public statements, do not evince the characteristics of rectitude and truthfulness and sincerity and character that the voters are looking for.... There are a lot of nutty things she's been saying."

Here, I thought, was the de Coverley moment, and on Fox News, no less! Rove had broken Ronald Reagan's 11th commandment: "Thou shalt not speak ill of any fellow Republican."  You could see the shock on Sean Hannity's face, and hear the amazement in his voice as he said that he disagreed with Rove.  Disagreement among conservatives, live and on the air and on Fox, no less?  "Gimme eat!"

But it didn't last. The next day, Rove furiously backtracked.  What happened?  In the meantime, he had had been chastened by the Tea Party's Captain Black, Sarah Palin, who told him: "It's time for unity."  Being questioned about his comments, once again on his employer, Fox News, Rove said "I endorsed her the other night." While he reiterated that she had some questions to answer, there were no more aspersions on her character or references to the "nutty things" she's been saying.

And the Glorious Tea Party Loyalty Oath Crusade went on.