The far right is stealing the Constitution

So please read it -- then join me in taking it back, asks law professor GARRETT EPPS

In October I spent a crisp Saturday in the windowless basement of a suburban Virginia church attending a seminar on "The Substance and Meaning of the Constitution." I was told secrets the "elite" have concealed from the people: The Constitution is based on the Law of Moses and virtually all of modern American life and government is unconstitutional.

Social Security, the Federal Reserve, the Environmental Protection Agency, the Civil Rights Act of 1964, hate crime laws -- all violate God's law. State governments are not required to observe the Bill of Rights; the First Amendment establishes "The Religion of America," which is "nondenominational" Christianity.

The instructor was Lester Pearce, an Arizona judge. He got rapt attention from the 50 people in the audience, although one boy near me spent his time perfecting a detailed sketch of an assault rifle. These were earnest citizens who had come to learn, but what they were being taught was poisonous rubbish.

Americans today are frightened and disoriented. In the midst of uncertainty, they are turning to the Constitution for tools to deal with crisis. The far right -- the toxic coalition of Fox News talking heads, radio hosts, angry "patriot" groups and power-hungry right-wing politicians -- is responding by feeding their fellow citizens mythology and lies.

The seminar I attended was organized by the National Center for Constitutional Studies, the Cold War brainchild of a prominent John Bircher. Both the organization and its crazed ideology have been taken up by Glenn Beck of Fox News. Civic groups, school districts, even city governments, have sponsored its day-long seminars.

Mr. Beck is not the only commentator espousing such extremist notions. Popular authors Thomas Woods Jr. and Kevin Gutzman, in their book "Who Killed the Constitution?," argue that Brown v. Board of Education should be overturned. Not even the Constitution is safe from the "constitutionalists": Andrew Napolitano of Fox recently called the popular election of senators "the only part of the Constitution that is itself unconstitutional."

Conservative lawmakers increasingly claim that the "original intent" of the Constitution's framers and the views of the right wing of the Republican Party are one and the same. Newly elected Sen. Mike Lee of Utah has endorsed state "nullification" of the health care law.

It's easy to understand why conservatives want to align their political program with a strained reading of the Constitution: Social Security, Medicare, environmental protection and aid to education have broad popular support. Even the health care program, so reviled by the Republican Party, will be almost impossible to repeal using the legislative process.

So the right is arguing that progressive, democratically enacted policy choices are unconstitutional. A document that over time has become more democratic and egalitarian is being rewritten as a charter of privilege and inequality.

How has the right done so well in putting forward its invented "Constitution"?

Some of the responsibility lies with progressive legal scholars, who are well situated to explain the Constitution to the public. It isn't that they have failed; it's that they seldom try.

Scholars from top schools hold forth with polysyllabic theories of hermeneutics that ordinary citizens can't fathom. Meanwhile, conservatives speak directly to the public and purvey a simple myth: Anyone who doesn't support the far-right version of the Constitution is at best unpatriotic, at worst a traitor.

Enough of that. It's time to take back the Constitution from those who are trying to steal it in plain sight. Our Constitution wasn't written to rig the political game but to allow us to play it without killing one another. It created a government and gave that government the power it needed to function.

That seems elementary, but the right claims that modern government programs must be unconstitutional or the framers would have specifically provided for them in the Constitution. Not so. The framers wanted to impel change, not prevent it.

Conservatives also claim the Constitution was set up to restrain the federal government. But the actual text is overwhelmingly concerned with making sure the new government had enough power; the framers thought the old Articles of Confederation were fatally weak.

Sure, they didn't want to set up a government that could throw people in jail without a good reason, or steal their property or do away with free elections. The Constitution prohibits oppressive practices. But the document is much more concerned with what the government can do -- not with what it can't.

From the beginning it was empowered to levy taxes, to raise armies, to make war, to set the rules of commerce and to bind the nation through treaties and international agreements. There's no sign of the libertarian fairyland many on the far right have invented.

Rather, the Constitution allowed for a government adequate to the challenges facing a modern nation. It gave the federal government a lot of power, which it has sometimes needed -- to deal with civil war, economic calamity and internal disorder.

Another myth is that the Constitution was created to "protect" the states from federal intrusion. Its limits apply mostly to state governments. The idea that states have rights, or are sovereign, appears nowhere in the original Constitution. And constitutional amendments have repeatedly granted more power to Congress.

The most important truth about the Constitution is this: It was written to allow living people to solve their own problems, not as a "dead hand" restricting their options. Strikingly many important questions, from the nature of the Supreme Court to the composition of the Cabinet, are left to Congress. There's ample evidence in the text that the framers didn't think of themselves as peering into the future and settling all questions; instead, they wrote a document that in essence says, "Work it out."

The far right views the Constitution as something like the "killing jar" scientists use to preserve butterflies, freezing the country under glass, preventing social change and stripping the democratic process of its effectiveness. The issue in constitutional interpretation is not whether the Constitution is a living document; it is whether the United States is a living nation.

That simple reality is often obscured by conservatives' claim that they, and only they, follow the framers' "original intent." They cast the supposed advocates of a "living Constitution" as smooth-talking elites who want to replace the good old Constitution with their personal views.

In fact, we are all "originalists." But many constitutional interpreters find the "intent" of the framers and ratifiers of the Constitution in, well, what the Constitution says.

If the Constitution says Congress has the power to regulate "commerce with foreign nations, and among the several states, and with the Indian tribes," we look around and see what "commerce" consists of today. If the village surgeon has been replaced by a nationwide for-profit hospital chain and a system of group health insurance, then the power of Congress tracks that change.

Many "originalists" say we should consult history to determine what ordinary people in 1787 (or 1866, or whenever a specific provision was written) would have thought the words meant. Supreme Court Justice Antonin Scalia, for one, considers that inquiry pretty straightforward: "Often -- I dare say usually -- that is easy to discern and simple to apply." But as practiced by Justice Scalia, that tends to reduce itself to, "Trust me, I knew the framers and here's what they would have said."

Consider Citizens United v. Federal Election Commission, the case in which the Supreme Court's conservative majority gutted federal restrictions on expenditures by corporations during elections.

In dissent, Justice John Paul Stevens pointed out that most political thinkers during the founding period distrusted the corporate form of organization. That might be true, Justice Scalia replied, but only because 18th-century corporations were associated with monopoly privileges. "Modern corporations do not have such privileges," he wrote, "and would probably have been favored by most of our enterprising founders."

Justice Scalia was essentially saying, "They didn't really know what they thought; luckily, I do." If we adopt his definition of the founders' intent, then we the people lose all right to interpret or even really read our own Constitution.

At best, we must accept the dictates of historians, who often disagree. At worst, we are delivered into the hands of Justice Scalia and his ilk, who are utterly confident about their power to pluck the "easy, simple" meaning from the air -- which usually coincides with the program of the 21st-century judicial right.

Serious originalist scholarship is very useful in learning about the Constitution. But in the hands of judges like Antonin Scalia or demagogues like Glenn Beck, it is an intellectual weapon designed to hide from ordinary citizens what is in plain sight -- the text of the Constitution and the present circumstances to which it must be applied.

That text, and those circumstances, are the tools we the people need to fight back. To save our Constitution, we have to read it -- then measure it against the absurd claims we hear every day.

This is a matter of life and death for our Republic. We won't find the tea party manifesto there; nor will we find the agenda of progressive advocacy groups. What we will find is a set of political tools and a language that fair-minded citizens, progressive or conservative, can use to talk through our disagreements.

Trapped in that ghastly church basement last year, I made a resolution that I would try to help rescue the Constitution from "constitutionalists." Here and now I say to readers that if any group of citizens anywhere wants to meet in a church basement to discuss these issues, I will go there to help or try to find someone who will. It's time for progressive constitutional scholars to stop mumbling about obscurities and speak up for democracy.

Ordinary Americans love the Constitution at least as much as far-right ideologues. It's our Constitution, too. And it's time to take it back.

Garrett Epps , a law professor at the University of Baltimore, is a novelist and former staff writer for The Washington Post. The original version of this article appears in the Feb. 7 edition of The Nation magazine.

First published on January 30, 2011 at 12:00 am