Rekindling debate about constitutional amendments

When Republican leaders in Congress started talking about revisiting the 14th Amendment to the Constitution, which guarantees citizenship to anyone born in the United States, the discussion appeared to many to be election season maneuvering.

South Carolina Sen. Lindsey Graham said he was hearing from constituents who wanted Republicans to take a tough stance against illegal immigration. House Minority Leader John A. Boehner and Senate Minority Leader Mitch McConnell proposed a congressional hearing on the matter.

But the Republicans may be hearing something else as well — a growing call on the political right to revisit several constitutional questions long considered settled by many legal experts and the Supreme Court. Prominent among the advocates is the “tea party” movement, whose core message supports a return to “founding principles” and adherence to the framers’ original intentions.

This “constitutional renaissance,” as some call it, has led to a revival of some old ideas, such as the repeal of the income tax, as well as the emergence of some counterintuitive ones, such as the return to a Senate elected by state legislatures.

Some of the ideas are far outside mainstream legal scholarship and none is likely to be become law anytime soon. But the recent discussion about the 14th Amendment illustrates the growing appetite for constitutional solutions.

“The intellectual positions are not new. What’s new is there’s a nascent political movement willing to take these up contrary to settled law,” said Stanford Law School Dean Larry Kramer, author of “The People Themselves: Popular Constitutionalism and Judicial Review.” “But one of the great things about constitutional law is [that] nothing is ever settled.”

Not all tea party activists advocate constitutional overhauls. Since the movement arose in opposition to government spending and the healthcare overhaul, it has remained proudly disjointed and has resisted aligning behind a unified set of specific proposals.

And not all calls for constitutional solutions come from the tea party movement. Some, such as the proposed revisions to the 14th Amendment, have sprung up in response to issues of concern to other parts of the right.

But the proposals generally take inspiration from the view that the country’s political institutions have strayed dangerously far from the founders’ vision. Most attempt to address what proponents see as the unwise shift to a strong and large federal government, and they rely heavily on the notion that the founders were prescient in anticipating the questions of a modern society and that some amendments to the Constitution have been misguided.

“The Constitution is a divinely inspired document,” said Jason Hoyt, a tea party organizer from Orlando, Fla. “You don’t amend it on a whim.”

Added Mark Meckler, a cofounder of Tea Party Patriots from Grass Valley, Calif.: “The Founding Fathers understood the states created the federal government and the states should reign supreme. Not the other way around. We are far from that. The shift has been dramatic.”

What most legal scholars and tea party activists agree on is the point at which federal power expanded.

In 1937, the Supreme Court embraced key portions of Franklin D. Roosevelt’s New Deal. Under the banner of regulating interstate commerce, the court allowed for broad federal intervention in industry and opened the way for federal solutions to problems as diverse as civil rights and pollution.

Some conservative legal experts have long opposed this interpretation. But such arguments have largely remained intellectual debates with little political steam.

“Many judicial conservatives — academics and justices — they have accepted the New Deal and, maybe, disagree about the details,” said Randy Barnett, a professor of legal theory at Georgetown University Law Center and author of “Restoring the Lost Constitution: The Presumption of Liberty.”

“The tea party didn’t know about this. No one gave them the news. They’re reading the Constitution and saying, ‘So where does Congress get all this power from?’ ”

This question is particularly potent for opponents of President Obama’s healthcare plan who see the bill as further expansion of the Constitution’s commerce clause. That issue is likely headed to the Supreme Court.

Regardless of the court’s decision, the return to a pre-New Deal view of the commerce clause — as often promoted in tea party rhetoric — appears far from likely. Though the rhetoric is strong, the results are less politically palatable. Federal child-labor laws, wage-and-hour laws and drug laws are all dependent on the expanded interpretation.

This doesn’t concern activists such as Meckler.

“I’d like to see us follow and understand the Constitution,” he said. “That’s going to lead to some places I might like and some places I might not like. But what I like best is that we’re a nation of laws and not men, and we should follow our laws.”

Others have begun advocating the reining in of federal government through other means. Barnett and a group of tea party activists are working on a proposal for a constitutional amendment that would effectively give state legislatures veto power over federal laws.

Another often-cited approach is the repeal of the 16th and 17th amendments. The 16th Amendment overturned an 1896 Supreme Court ruling invalidating a federal income tax. Repealing it would be a swift blow to federal programs.

Others have called for the repeal of the 17th Amendment, which established the popular election of senators. It’s a proposal that strikes some as odd, particularly coming from a movement often branded populist.

“Turning [Senate elections] back over to state legislatures, it is an anti-democratic movement, which is really unusual in politics,” said Stanford’s Kramer.

But advocates for the repeal say the nation’s founders gave the state legislatures the power to elect senators as a check on federal power.

In practice, legislatures were often deadlocked in Senate elections, which often brought state business to a standstill, said Ralph Rossum, a constitutional law professor at Claremont McKenna College and author of “Federalism, the Supreme Court, and the 17th Amendment: The Irony of Constitutional Democracy.”

“The founders put this great power in their laps, and all it was was a curse,” Rossum said.

The problem with cleaving to the Founding Fathers’ approach, Kramer said, was that so many of their best-laid plans went awry.

“Really, nearly all their major assumptions were wrong,” he said. “The separation of powers didn’t work the way they thought it would. The assumptions about federalism didn’t pan out,” he said, forcing pragmatic adaptations.

Some see that pragmatism at play in the calls for a reconsideration of the 14th Amendment, passed after the Civil War to ensure citizenship for former slaves.

A change could mean children of illegal immigrants would not automatically be given citizenship. Graham has said in a series of interviews that the founders could not have anticipated that women might come to the U.S. just to give birth.

Others argued that the Supreme Court has long misread language in the amendment granting citizenship to those born in the U.S. “and subject to the jurisdiction thereof.” Jurisdiction, they suggest, could refer to national allegiance, although this is not the common definition of the word.

Homeland Security Secretary Janet Napolitano said last week that messing with the amendment is “just wrong.”

kathleen.hennessey@latimes.com