Legal Commentary

The flash tempest about Rand Paul and the Civil Rights Act of 1964 suggests that we may be in store for some interesting constitutional argumentation in the run-up to the midterm elections.  One might have thought that the most interesting issues were going to surround some of the (alleged) policy innovations of the last couple of years, from TARP to health care, innovations not just about policy but about the power of government.  Maybe one way to put it is that the issues were going to focus on how much farther federal power (and maybe governmental power in general) should go.  But the rise of an aggressive and vocal Tea Party movement may unleash suggestions of pushing back -- maybe significantly back -- on federal power as it currently exists.

The controversy over Paul and the Civil Rights is one example.  But there could be others.  For example, the Maine Republican Party's platform calls for abolishing the Federal Reserve.  Of course, state Republican Party platforms have proposed some fairly extreme things in the past, too.  And platforms are not policies, or even candidates' policy positions.  But when those platforms are backed by a vocal part of the party, there's more reason to suspect that at least some of these arguments will be aired in public, and not just tucked away on the party's website where nobody reads them.  These planks must be meaningful if the activists are motivated to junk the establishment's platform and insert the new one instead.  We know from people like Rand Paul that candidates favored by these activists seem to think these ideas matter to their base.

I don't think it's such a bad thing for our democracy that once in a while fundamental assumptions are questioned.  I happen to think that some of the ideas I'm hearing from the Tea Party are wrong, and frankly, scary.  And I concede that I don't like the idea of seriously rethinking fundamental civil rights commitments we've made.  But if we're serious about being a self-governing people, there's something to be said for signing off again on the basics of the New Deal, or the environmental or consumer movements, after having a vocal group argue the other side.  I'd be delighted if every American did this in an instant, thinking to him or herself, "of course I support all that, we don't even need to think about it, do we?"  But since most Americans don't think about these issues every day, or even every election cycle, it may make sense, maybe once in a generation, to air the issues and (I hope) reaffirm our commitment to some basic national goals and to giving government the power to accomplish them.