Jared A. Goldstein (Roger Williams University School of Law) has posted The Tea Party Movement and the Contradictions of Popular Originalism (Roger Williams Univ. Legal Studies Paper No. 102) on SSRN. Here is the abstract:
This Article examines the Tea Party movement’s popular originalism and its implications for both originalism and popular constitutionalism. The Tea Party movement is easily recognizable as a nascent popular constitutionalist movement because it seeks to implement its understanding of the Constitution through ordinary politics. At the same time, the Tea Party movement is an avowedly originalist movement, whose central commitment is to restore what the movement’s supporters understand to be the nation’s foundational principles. As a popular originalist movement – a movement that combines originalist rhetoric and popular constitutionalist methods – the Tea Party movement exposes several contradictions latent in originalism and popular constitutionalism. First, it is somewhat paradoxical to characterize the Tea Party movement as a popular constitutionalist movement when the movement ideologically rejects popular constitutionalism. Second, while one of the chief virtues asserted on behalf of originalist methodology is that it provides a way to construe the Constitution free of political influences, originalism also provides a powerful rhetoric used by groups like the Tea Party movement to serve political ends. Third, although one of the chief virtues asserted on behalf of popular constitutionalism is that it democratizes constitutional lawmaking, the Tea Party movement shows that popular constitutionalism can also be employed for anti-democratic ends.
Posted at 10:26 AM