Campaigning Against the Constitution

The Antifederalism of Rick Perry & Michele Bachmann

With the entry of Texas Gov. Rick Perry into the race for the Republican presidential nomination, we can expect additional displays of constitutional foolery. It was bad enough when Rep. Michele Bachmann of Minnesota declared President Barack Obama’s federalist policies “anti-American” (she graduated from the law school of Oral Roberts University). It was worse when Perry inveighed against federal power, suggesting that Texas might secede from the union (again). He may have forgotten the Supreme Court holding in Texas v. White (1869) that the state’s secession of 1861 was unconstitutional; ours is an “indestructible union,” said the Court (after a horrific war).  Later, announcing his candidacy, Perry promised voters to “make Washington, D.C., as inconsequential in your life as I can,” including, it seems, repeal of the Sixteenth Amendment authorizing the income tax. Given this talk, it is fair to ask of a Perry presidency (as one Texas congressman did), “of which country?” 

The antifederalist constitutional theory that lies behind Perry-Bachmann could not be more naive, mistaken, or wilfully mischievous. The pity is that the American electorate, like thousands of Iowans at the August 13 Ames straw poll, may buy into this stuff come November 2012.

Either a bad case of constitutional amnesia has beset Perry-Bachmann or there was a grave failure in their high-school civics courses. Consider that Congress has the power to “regulate commerce with foreign nations and among the several states,” a power reinforced by the authority to make such laws as are “necessary and proper” to give effect to all other powers (Art. I, § 8). The additional declaration that such laws “shall be the supreme Law of the Land” (Art. VI) answers decisively the question whether federal or state laws are of the higher order. That result is unaffected by the Tenth Amendment— doubtless a Perry-Bachmann favorite—reserving to the states power not delegated to the federal government.

To be sure, the issue turns on interpretation of the power to “regulate commerce…among the several states." Even strict originalists, who believe that the words’ meaning was frozen by the Founding Fathers, are left in the dark of  the eighteenth century. We do have Madison telling us in Federalist No. 42 (1788) that the immediate point of the Commerce Clause (expressing the “mild voice of reason”) was to ensure free passage of goods among the states, a primary concern in the simple economy of 1788. But Chief Justice Marshall, who had been present at the Virginia ratifying convention, went further in a unanimous decision: in Gibbons v. Ogden (1824) he declared that the Commerce Clause granted Congress power to regulate “intercourse” that “concerns more states than one” except concerns that are “completely internal.” 

The great treatise of Justice Joseph Story, who sat with Marshall (and a Harvard law professor), added that “it has been held upon the most solemn deliberation, that the [commerce] power is exclusive in the government of the United States” (Commentaries, 1833). That proposition may have escaped Perry when he studied animal husbandry at Texas A&M. 

Application of Marshall’s capacious rule produced inconstant results over the ensuing decades as constitutional law experimented with a dynamic and multifarious commercial life. During the New Deal, doctrine settled down: the Court would hold that a purely local activity (growing wheat for personal consumption) with a substantial economic effect on a national quota regime could be regulated by Congress (Wickard v. Filburn, 1942). Recent case law has insisted that the Commerce Clause refers to commerce proper and is not a universal solvent. But the power of the Clause over true commerce remains and is the source of the vital national legislation that is characteristic of a decent society, from antitrust laws to the regulation of railroads, food and drugs, securities transactions, labor relations, social security, civil rights, and, now, health care. It is these towering social achievements of a modern state that Perry-Bachmann would undo.

About the Author

Joseph D. Becker, a founding partner of Becker, Glynn, Melamed and Muffly, a Manhattan law firm, is author of The American Law of Nations (Judis).



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Don't forget that the GOP mantra about health care is to ALLOW and ENCOURAGE health insurance companies  to offer insurance ACROSS state lines. this is an example of the two way hypocrisy of GOP positions.

Wow, well done piece. Necessary points made persuasively. I will share it and link to it. We progressives need to do more constitutional arguments against these tea partiers. Good stuff.

Commonweal's analysis of the anti-federalism of Perry and Bachmann incisive.

I'd like to offer an additional perspective regarding the Republican candidates, based on their desire to erase the separation of church and state, and the role of a statesman and his religious beliefs under our constitution:

American Exceptionalism, Political Power and the Holy Spirit

The 2012 Republican Presidential Primary Candidates


One of the trends I find "exceptional" about the USA today is the number of religious sects and cults participating directly in the electoral process.  The leading contender for the Republican nomination for President, Gov. Mitt Romney, is a Mormon, officially known as The Church of Jesus Christ of Latter-day Saints. Nearly all mainstream Protestant Churches and the Catholic Church view Mormonism as a heretical sect.    


Gov. Rick Perry of Texas began his Presidential campaign by organizing a “Christian Only” evangelical, and "Dominionist" prayer meeting called “The Response: a call to prayer for a nation in crisis.” “Dominionism” is the belief that holds the Holy Bible as dominant over laws made by man. For an examination of the relationship between Gov. Perry and the controversial “New Apostolic Reformation” movement, see the Texas Observer’s article “Rick Perry’s Army of God” “The Response” was a gathering of the different tribes of American fundamentalism – Christian Zionists, prayer warriors, apostolic and prophetic types, etc. – under the umbrella of political and spiritual revival, see Rachael Maddow’s special report:


Like Governor Perry, Congresswoman Michele Bachmann espouses a "Dominionist" religious perspective and spent her student years in law school studying the "dominionist" approach to society, law and government, see John Chait’s article in the New Republic:


 Gov. Sarah Palin is a member of a "The Wasilla Assembly of God."  The “Wasilla Assembly” is a member of the Assemblies of God, a Pentecostal Christian denomination founded in 1914, in the United States. The ‘Four Core Beliefs’ of the Assemblies of God are Salvation, Baptism in the Holy Spirit, Divine Healing and the Second Coming of Christ.


A dramatic insight into Pentecostalism is found in the 1997 film, The Apostle written, directed and starring Robert Duvall, as a charismatic “Pentecostal” preacher. Pentecostals are known to “speak in tongues:” see a clip from Duvall’s movie, The Apostle:


The Apostle’s main character Sonnyis what social scientists once politely referred to as “Other Protestants.” Sonny was actually a preacher in the traditional holiness movement, distinct from the Pentecostal movement, which believes that the baptism in the Holy Spirit involves speaking in tongues. Many of the early Pentecostals were from the holiness movement, and to this day many "classical Pentecostals" maintain much of holiness doctrine and many of its devotional practices, according to  


Modern “Dominionism” is largely unknown to most Americans. The list of unknown schismatic sects, cults, groups, exotic beliefs and churches, which the contenders for the Republican nomination belong to or are in agreement with, is "exceptional." The religious fringe, it seems, has become the Protestant mainstream.


Today’s Republicans could be re-branded the “Christian Republican Party.”  The center core of Protestant faith has migrated from “Liberal Protestantism” to an entrepreneurial-style, evangelist and fundamentalist faith, which votes heavily on the Republican Row. It was once believed that such sects originated mainly among the religiously neglected poor. Clearly, this is now no longer the case. It has been argued by social scientists that insecurity, differential status and anxiety characterize these religious movements. The effects of the Great Recession and the affects of geographic relocation and workplace displacement have contributed to a sense of anxiety and anomie among the American middle-class.


The German theologian Ernst Troeltsch, considered the major historian of sectarian religion, has characterized the psychological appeal of fundamentalist religious sects in a way that might appropriately be applied to extremist politics. A direct connection between the social roots of political and religious extremism has been observed in a number of countries. It was observed by the American sociologist S. M. Lipset, as early as the 1960s, in his seminal essay “Working Class Authoritarianism” that “rigid fundamentalism and dogmatism are linked to the same underlying characteristics, attitudes, and predispositions which find another outlet in allegiance to extremist political movements.”   


Many western democracies have “Christian Democratic Parties,” the US, because it is “exceptional,” has a “Christian Republican Party.” The candidates for the Republican nomination have made their religious views of scripture known, by degrees.  To discover what these candidates deeply and sincerely believe requires the investigative work of a "large metropolitan newspaper."


The ascendancy of the “nouveau fundamentalist Protestant elite” to high leadership positions in the Republican Party needs to be understood as a serious step toward a profound redefinition of church and state in America. The ascendancy of hard-core chronic “know-nothing-ism” and “anti-intellectualism,” so eloquently written about by Columbia historian Richard Hofstadter, and sectarian belief systems, is undoubtedly "exceptional" for a modern mass political party with governmental responsibilities. While it is argued that Europe is experiencing a “crisis of faith,” the United States is experiencing a revivalism parallel with the Second Great Awakening of the 1800s.  


The decline of mainstream Methodists, Presbyterians, Congregationalists and Episcopalians as forces affecting the direction of the Republican Party, has been statistically significant, and the rise of “Other Protestants,” and sects, has marked a realignment of voting patterns and political commitment.

 Is it possible to image Presidential candidate John F. Kennedy organizing a 30,000 person “Catholics only” prayer service as a campaign launch? One of the famous quotes from Kennedy’s address to the Greater Houston Ministerial Association, during the 1960 national election, was, “I am not the Catholic candidate for President. I am the Democratic Party’s candidate for President who also happens to be a Catholic. I do not speak for my Church on public matters — and the Church does not speak for me.”  


Just on the face of it, given past US Supreme Court (SCOTUS) decisions interpreting the "commerce clause" giving the federal government broad and expansive powers, it would seem that especially the Affordable Health Care Act would pass constitutional muster.

But the fly in the ointment is that, as repeated demonstrated in recent history especially in Bush v. Gore, SCOTUS is hopelessly politicized.  

The reactionary Republican SOTUS majority [made up of our brother Catholics] doesn't seem to be able to keep its nose out of politics and just stick to the law.  Roberts and Scalia [two Justices who are really subservient to their corporate masters] will probably get Kennedy to go along in striking down most likely the "mandate provisions" of AHCA.

The Republicans are totally clueless about how adverse the reaction of the voters will be to this giant step backwards.  They will pay a terrible price once voters understand that Republican corporate stooges have again screwed them over.

Thanks for this timely reminder of the great difference between the America of the Articles of Confederation (which openly endorsed state sovereignty in 1777), and the America governed by the US Constitution (proposed in 1787).

The quarrel over ratification was a major debate that shaped the republic for centuries. As Becker notes, both Backmann and Perry are clueless on the history and significance of this debate. The cartoonish way in which they reinvent it is a libel on the Founders known as "Anti-Federalists," who regarded themselves as the real Federalists, and made that point stick in the Election of 1800 that defeated Federalist John Adams and started 24 straight years of Presidents from Virginia (Jefferson, Madison, Monroe), who in various ways opposed the “Federalists.”

In 1787 the Federalists urging ratification (hence called "Rats" by their opponents) and the Anti-Federalists opposing it (hence called "Anti-Rats") had many important differences of opinion. For example, they argued about how to construe the text of the constitution -- strictly (Jefferson) or with room for analogous reasoning (Hamilton). But I know of no writer in this period who subscribed to the confederate view of state sovereignty espoused by Bachmann or Perry.

The most telling division in 1788 arose primarily because of the failure of the Constitutional Convention to include a Bill of Rights in the text of the federal constitution, as all State Constitutions had done. Jefferson was off in Paris as our Ambassador, but wrote fervid letters back to friends in Virginia urging them to oppose ratification because of this fatal defect. Again, this fact offers no historical support for  Bachmann or Perry, neither of whom embraces a philosophy of restraint on governmental power when it comes to the criminal process identified in the Fourth, Fifth, Sixth, and Eighth Amendments.

James Madison well knew in 1787 that "state sovereignty" is nowhere mentioned in the US Constitution because he drafted the document (hence called the "Father of the Constitution"). He urged New Yorkers to ratify the Constitution in a series of tracts collectively known as the Federalist Papers. But when his own career was on the line, Madison saw the wisdom of the Jeffersonian Anti-Federalist view. When the time came for the People of Virginia to choose a representative for Orange County in the First Congress, a group of Baptists told Madison bluntly that they were prepared to vote for another slaveholder in the county named James [Monroe] unless Madison agreed to sponsor a Bill of Rights in the First Congress. Madison swiftly agreed to do so.

The Anti-Federalist tracts of the eighteenth century -- gathered in two collections by Morton Borden and Herbert Storing -- are still worthy of attention. It takes a lot of wrenching away from the context of these texts for anyone to regard them as providing solid historical support for the views of Bachmann and Perry. 

As Becker rightly notes, the other major constitutional moments that both these candidates (and many judges) overlook are the Civil War and the New Deal. The renewal of the state sovereignty claim in the debate over slavery came to a formal end with the surrender of Lee’s sword to Grant at Appomattox Court House. The three major amendments (13th, 14th, and 15th) that followed the war located the enforcement power for the re-creation of a new nation not in the Statehouses, but in the Congress of the United (not confederated or sovereign) States.

None of this history violates the rights retained respectively by the People or by the States in the Tenth Amendment. Again, Madison should know. He wrote this text and understood fully -- as did Andrew Jackson and FDR -- the difference between state sovereignty and states’ rights.

Too bad Congresswoman Bachmann and Governor Perry don’t seem to know these things. If either (or both!) of them be nominated, one can only hope that enough members of our often supine press will be alert enough to ask the questions Becker raises.   


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