The Democratic Strategist misdescribes some legal issues

The Democratic Strategist (co-edited by William Galston, Stan Greenberg, and Ruy Teixeira) aims to provide “serious, data-based discussion of Democratic political strategy.” Today, a special “Urgent” issue was published, regarding the Supreme Court and warning about the “covert extremist agenda” of the Republican right. The report raises an alarm about the legal agenda currently promoted by “the Christian Right, the Tea Party Movement, and the radical Federalist Society legal wing of the Right.” The report provides three examples. First:

Since the 1990’s, the Christian Right has sought to replace the traditional American separation of church and state with the notion that the U.S. was actually created as a “Christian Nation” in which Christianity was intended to receive favored treatment by government policy. The most startling recent expression of this view was last month’s decision by the Texas School Board to remove Thomas Jefferson—the symbol of America’s tradition of religious freedom and tolerance—from the states’ history curriculum.

The report is accurate in that some (although hardly all, or necessarily most) supporters of the “Christian Right” believe that the government should favor Christianity over other religions. Most of the Christian Right does believe, as did Chief Justice Rehnquist, that in some circumstances the government may favor religion over irreligion. See Wallace v. Jaffrey (1985) (Rehnquist, J., dissenting from decision to declare moment of silence in schools unconstitutional).

The report’s description of the Texas State Board of Education (not the “Texas School Board”) is inaccurate. Under the new  proposed standards, Jefferson is part of the required curriculum for 5th grade American History, 8th grade American History, and the high school class in U.S. Government. He was removed from the standards for World History class, because the Texas State Board thought that he should not be included among “European Enlightenment philosophers.” In the 8th grade American History class, not only is Jefferson required, so is his good friend, the famous enemy of organized religion, Thomas Paine. Only George Washington appears in the Texas curriculum standards more often than does Jefferson.

Item 2 in The Democratic Strategists’ parade of horribles is the lawsuits against Obamacare:

The basis for such suits—typically a denial of the power of Congress to legislate economic matters under the Commerce and Spending Clauses of the U.S. Constitution—is automatically and unavoidably a collateral attack on the constitutionality of a vast array of past legislation, including most New Deal/Great Society programs such as Social Security and Medicare.

The word “basis” has a footnote cite to an article by Matthew Yglesias. The Yglesias article criticizes the notion that  Commerce “among the several States”  should be “understood as basically about transporting goods across state lines.” Yglesias points out: “the Louisiana Purchase, the Bank of the United States, Henry Clay’s ‘American System,’ a transcontinental railroad, land grant colleges, etc. And in particular since the New Deal the commerce clause has always been understood as granting wide-ranging authority to regulate the national economy.” True enough in a broad sense (although most of Yglesias’s 19th century examples do not involve the interstate commerce power). So if the lawsuits were premised on the idea that the federal power over interstate commerce extends only to the sale of goods across state lines, The Democratic Strategist’s warning would be apt.

However, if you read the complaints filed by Virginia and by the 18-state coalition led by Florida, there is no argument against the interstate commerce power as it existed on March 1, 2010. Rather, the complaints argue against an unprecedented expansion of the interstate commerce power: namely the purported power to force an individual to purchase a product he does not want to purchase, and an unprecedented use the tax code to punish someone for choosing not to purchase a product.

While the cases do complain about changes in the state funding formula for Medicaid, they never question the constitutionality of Medicaid itself. Thus, an attack on Obamacare is not “automatically and unavoidably a collateral attack” on even an iota of the New Deal and the Great Society. As I have previously detailed, finding the Obamacare mandate and its associated tax to be unconstitutional does not require overturning, or even questioning, a single precedent in existing Supreme Court law.

The third and final item in the parade of horribles:

The Republican revolt against any cooperation with Democratic legislation and initiatives has carried an extraordinary number of conservatives into a general attitude of defiance towards the rule of law itself and flirtation with constitutional doctrines of state nullification and succession. These doctrines were developed as arguments for state sovereignty by the Confederacy in the civil war era and as 1950’s and 1960’s era segregationist strategies to thwart desegregation and civil rights for African-Americans. [And, later in the document:] Let them bring it on with all the segregation-era legal strategies of succession and nullification.

Well, not exactly accurate. First, the doctrine of “succession” describes how Barack Obama became President after George W. Bush. One of the first uses of the constitutional doctrine of succession was when John Adams became President after George Washington.

The doctrine of “secession” long predated the Confederacy. It was advanced by, among others, some New Englanders who wanted to leave the Union during the War of 1812, by Southerners who advocated the right when objecting to the 1828 Tariff of Abominations, and by some persons at the very end of 18th century who feared that President Adams was moving the country towards dictatorship. Thomas Jefferson, in his 1798 letter “Patience and the Reign of Witches,” counseled against secession as response to “a temporary superiority of the one party,” notwithstanding the “oppressions of enormous public debt. . . . Better keep together as we are. . . If the game runs sometimes against us at home we must have patience till luck turns, & then we shall have an opportunity of winning back the principles we have lost . . . .”

The Democratic Strategist rightly reveres the great Thomas Jefferson, so it is surprising that TDS does not know (or, at least, does not acknowledge) that the constitutional doctrine of nullification was first articulated by Jefferson himself, in the Kentucky Resolution of 1798. As Jefferson put it, “where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy.” James Madison, the Father of the Constitution, articulated the milder doctrine of Interposition, in the Virginia Resolution, declaring that the states “have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.”

The Democratic Strategist affirms “that the Democratic Party proudly upholds the traditional American view of the constitution—the view of the founding fathers of this country—George Washington, Thomas Jefferson, Benjamin Franklin, Alexander Hamilton and John Adams.”  The Democratic Strategist then accuses its imagined enemies of being anti-american for allegedly trying “To establish the right of individuals or states to ignore and disobey any laws that they happen to interpret as impinging on their freedom or natural rights”  and the right of individuals “to ignore any laws they choose.”  This is straw man. As far as I know, no employee of The Federalist Society ever said that any individual could ignore any law he chose. All of the Founders, including Washington, Jefferson, Franklin, Hamilton, and Adams, did believe that in cases of great urgency and necessity, disobedience was a moral duty–which is why they helped to remove one government and replace it with another in 1776. Even under that new government, Jefferson and Madison thought that states had a duty to protect their citizens from federal laws which violated both natural rights and the Constitution–as did the Sedition Act, in the view of Jefferson and Madison. And of course many great Americans in the Civil Rights Movement in the 1960s refused to obey racially discriminatory laws which they believed to be contrary to natural rights and the Constitution.

Americans in the 21st century are free to disagree with Jefferson and Madison, just as did many Americans of 1798, since other some other state legislatures voted to reject the call to support the Kentucky and Virginia resolutions.

Near the end, the TDS memo announces: “Let them bring it on with all the attempts to write Thomas Jefferson and the separation of church and state out of American history.” May people of every political persuasion resist every attempt to write Thomas Jefferson out of our history. May everyone extol, as does TDS, “the traditional American view of the constitution—the view of the founding fathers of this country.” And so in our modern debates on the Supreme Court and judicial policy, may everyone be free to disagree with Thomas Jefferson and James Madison, but let no-one who espouses the constitutional doctrines of these great Americans be maligned as unamerican.

Christian Right, the Tea Party Movement, and the radical Federalist Society legal wing of the

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