In this Article, I consider the lessons that the Tea Party offers for scholars of popular constitutionalism. Specifically, I argue that the experience of the Tea Party should spark a reconsideration of some assumptions that tend to drive much of the interest in popular constitutionalism. Some who have embraced popular constitutionalism seem to assume that popular constitutional mobilization is a vehicle particularly well suited for advancing progressive constitutional claims. Alternately, some have assumed that popular constitutionalism has no particular ideological or partisan valence - that it is basically a neutral vehicle for advancing constitution claims of all kinds. But the lessons of the Tea Party might re-quire a rethinking of these assumptions. The Tea Party has shown that, at least on the modern American scene, popular constitutional mobilization is particularly effective at advancing causes much closer to the heart of the conservative or libertarian agenda. Part of the explanation for this has to do with the nature of constitutionalism as well as cultural assumptions prevalent in recent American history. But, more importantly, it has to do with the mechanism available for popular constitutional mobilization. These mechanisms serve certain causes better than others, and they serve demands for less government regulation particularly well. This, I suggest, has been the central lesson of the Tea Party for popular constitutionalism.
In Part I of this Article, I examine the basic project of popular constitutionalism, including its normative implications. I explore the challenges popular constitutionalists have had in defining their central concept, and I offer a working definition of popular constitutionalism that identifies what is unique about efforts of constitutional mobilization (as differentiated from social movements that lead to constitutional change). Part II describes the basic tenets of Tea Party constitutionalism. Here I explore the substance of the Tea Party’s constitutional vision, the strategies of constitutional interpretation the Tea Party has embraced, and the predominantly extrajudicial processes by which the Tea Party has sought to advance its reading of the Constitution. Part III then considers whether popular constitutionalism advances certain claims on the Constitution better than others. Drawing on the lessons of the Tea Party, I look at those mechanisms that have proven particularly effective at mobilizing and advancing popular constitutional claims, and I question how different kinds of claims might be advanced through these mechanisms. I suggest that there is some evidence to support the hypothesis that popular constitutionalism may be most effective when it is used to advance a conservative-libertarian agenda, such as that of the Tea Party.
Christopher W. Schmidt,
Popular Constitutionalism on the Right: Lessons from the Tea Party,
Denv. U. L. Rev.
Available at: http://scholarship.kentlaw.iit.edu/fac_schol/748