The courts and the Tea Party

If you want to know one of the reasons the Tea Party has managed to bring a lot of middle aged, middle American, heretofore a-political people out into the streets, read this posting, and especially the comment thread on The Volokh Conspiracy.

For people not familiar with this blog, it’s the creation of a group of Libertarian law professors. The Libertarian means that they are philosophically pro-individual freedom. Law professors mean that they focus on the legal precedents rather than the actual text of the Constitution.  For many people who teach the law, the Constitution is what the judges say it is. There is seldom a reference to the text of the actual constitution, but many references to court decisions.

The problem with this approach is illustrated by a story I was told years ago by a marketing manager for a soup company. By far their most popular product was mushroom soup. The company decided to improve its profit margin and determined that the most expensive ingredient was mushrooms. So they adjusted the machines that cut the mushrooms into slices – just slightly - to cut the mushroom a little thinner. The trial was so successful that the next year the slices were made a little thinner. So it went, year after year until the company found that their mushroom soup sales had dropped dramatically. They could not figure out why until they realized that the mushroom slices were now so thin that the soup was not really very good. You can only slice the mushroom so thin before people turn away.

That’s really the problem with lawyers and law professors. They have gotten so far into the weeds that they have completely lost track of the reason that people once gave great reverence to the courts. The problem for the courts is that the US Constitution is a fairly short, easy to read document that organizations like the Cato Institute have distributed by the millions. I have one on my desk that has both the Declaration of Independence and the Constitution.

There is one other factor at work that makes people compare court decisions to the text of the Constitution: the rise of alternative voices. When America had three TV networks and these networks and all the dailies took their cue from the NY Times and the AP, there was very little dissent among Middle America. The dissenters were on the Left, animated by hatred of capitalism and inspired by communism. They affected academia, the MSM and Hollywood. They had a net negative affect on Middle American adults although not some of their children who like the idea of adolescent rebellion and free sex.

Today we have The Godfather – Rush Limbaugh – who has made his name and fortune ridiculing the absurdities of the Left. He has been followed by Sean Hannity and Glenn Beck who broadcasts a daily class on the founding fathers, the original constitution and the conservative literature that was once consigned to the “ash heap of history” by the Progressives.

And unfortunately for the constitutional scholars arguing that forcing people to buy health insurance is a legitimate role of government - and constitutional to boot - because not buying insurance interferes with interstate commerce makes people say “huh?” How did we get to the point where not doing something can get you fined big bucks based on the Commerce Clause of the constitution?

Here is the Commerce Clause in full: (article 1, section 8, US Constitution)

[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.

By reading the comments following the post by Ilya Somin you will read some very learned – and some very snarky – comments defending the law that the Democrats passed, Obama signed and a judge in Michigan upheld. The trail from article 1, section 8 of the Constitution to the government forcing you to buy health insurance is a Rube Goldberg contraption in law that was built over time. The relationship between the Constitution and the law is now so tenuous, the link so weak, that it takes the kind of scholarship once reserved for defining how many angels can dance on the head of a pin.  Like the soup company that kept slicing the mushroom thinner, the public has finally turned away.

I don’t really care how elegant a chain of decisions can be cited to justify the judicial torture of the Constitution to make it confess to anything.  The people who really make up the bulk of the country are willing to take to the streets and flock to the polling booths this fall. The thread between reality and casuistry has snapped and people have had enough.