The Northwestern University Law Review Colloquy has posted a symposium on “The Constitutional Politics of the Tea Party Movement.” The symposium was organized by Richard Albert of Boston College, who arranged a panel on the subject at this year’s AALS conference and wrote an introduction available here. The symposium includes contributions by well-known constitutional law scholars such as co-blogger Randy Barnett, Jared Goldstein, and Sanford Levinson. My own contribution to the symposium analyzes the Tea Party Movement as an example of “popular constitutionalism.” Here is an excerpt from the introduction:
The rise of the Tea Party movement followed a period during which many academic students of constitutional law focused on “popular constitutionalism”: the involvement of public opinion and popular movements in influencing constitutional interpretation. Many of these scholars argue that popular constitutional movements have a beneficial impact on constitutional law, and some even contend that popular constitutionalism should supplant judicial review entirely….
Most of the previous scholarship on popular constitutionalism focuses on movements identified with the political left, such as the civil rights movement…. Although the Tea Party movement is primarily composed of conservatives and libertarians, it has much in common with previous popular constitutional movements.
Part I of this Essay describes some of these similarities, focusing on the ways in which popular constitutional movements have arisen in response to social or economic crises, or major policy initiatives instituted by their opponents. Part II explains how the Tea Party movement shares key strengths and weaknesses of other popular movements. For example, public opinion on constitutional and policy issues is often influenced by widespread political ignorance and irrationality. There also tends to be a conflation of constitutional and policy preferences. The Tea Party is no exception to these trends. The evidence suggests, however, that Tea Party supporters are no more likely to be ignorant than public opinion generally, or their opponents on the political left…..
Part III explains two possible advantages of one unusual feature of the Tea Party—the fact that it is the first popular constitutionalist movement in many years whose main focus is the need to limit federal power. The enormous size and scope of modern government undercuts meaningful democratic control over government policy because “rationally ignorant” voters cannot keep track of more than a small fraction of government activity. Strengthening democratic accountability is one of the main objectives of advocates of popular constitutionalism. The imposition of stricter limits on government power might make that goal easier to achieve. The Tea Party’s focus on limiting government also makes it less likely that we will see the emergence of a right-wing populist movement that is focused on intolerance and xenophobia, of the kind that often arose during previous economic downturns.