The Tea Party's Test for Elena Kagan and the Supreme Court

By Peter Roff, Thomas Jefferson Street blog

Since its inception the Tea Party movement has been met with considerable criticism from those who are opposed to its goals.

Flowing freely from the pens of some of the nation’s most prominent columnists are charges that it is too narrowly focused, that it lacks depth, that it is unrepresentative of the mainstream, or that it represents the darker side of the American character. One of them, writer and former Crossfire co-host Michael Kinsley has penned an essay in which he complains that Tea Party activists are, in contrast to the altruism of the anti-war demonstrators of the 1960s, “mostly self-interested.”

“They lack poetry: cut my taxes; don’t let the government mess with my Medicare; and so on,” Kinsley wrote on the website of The Atlantic magazine. “There is a nasty, sour, vindictive tone to the Tea Party that certainly existed in the antiwar movement and its offspring, but never dominated the atmosphere created by these groups. “

As usual, he’s missed the bus. Kinsley understates the radicalism of the '60s-era movement and its offspring, which seized buildings on college campuses, blew up others, caused riots in places like Chicago, and attacked police officers, among other less-than-altruistic deeds.

At the same time he overstates the threats posed by the Tea Party movement which is, after all, an almost exclusively peaceful protest. It is, in reality, a popular uprising dedicated to taking power back from a group of elites--most clearly but not exclusively represented by President Barack Obama and those who populate his administration--who seek to upend the cultural values and economic system that has made America a powerful force for good in the world. The Tea Parties are demanding from politicians in both parties a kind of accountability that has been lacking in the national government for some time.

In its latest push the Tea Party Movement has put forward a set of criteria by which President Obama’s judicial nominees, including Supreme Court Justice-designate Elena Kagan, should be evaluated. They are breathtakingly simple and filled with the kind of common sense that has been lacking in such debates ever since Senate liberals added the word “Borking” to the English language.

1. Judges must interpret the Constitution of the United States as written and not attempt to modify it, either by inventing new rights or by ignoring or diluting rights already there. The Constitution already provides an amendment process that gives that power to the people and their elected officials.
2. Judges must not use their positions to replace the text of the law and Constitution of the United States with their own personal feelings or agenda or "life experiences." Nor should they allow empathy, political favor, or political identification to affect their legal decisions. To do so is to engage in judicial activism.
3. Judges must understand that the Federal government has no power if the Constitution does not explicitly provide it. The Founders did this to maximize personal and economic liberty. The Constitution reserves all other rights to the states and to the people.
4. Judges must respect the delicate checks and balances and the separation of powers among the branches of government, refusing to become a tool of either the Legislative or Executive branches, and they must be prepared to invalidate efforts of either branch to overstep its constitutionally delegated powers.
5. The Constitution is an American document, and declares that it shall be "the supreme Law of the Land." Foreign law has no place as precedent or authority in the interpretation of the Constitution.

It is hard to argue against any or all of these ideas. The only way to move the nation forward, to prevent it from becoming a de facto unitary state where all policy is set in Washington but administered out in the hinterlands, is to go back toward the principles the Founding Fathers established when they wrote the Constitution. What the Tea Party Patriots have proposed for judges is as good a place as any to begin the process.

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