an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The two most significant political events of 2010 are the enactment of health care reform and the rise of the Tea Party. These developments are, of course, related. To think about how the landscape will look after November, it would be helpful to put the Tea Party in some context.
Almost every broad mobilization for change provokes an equivalent counter-mobilization. These movements then battle for popular support until one prevails. In the course of that struggle, each side must engage the other's arguments and make some concessions to hold its coalition together. What emerges is a new constitutional consensus. Consider some examples:
1. The Whig Party was created in response to Jacksonian Democracy and fears about executive tyranny. If you go back and look at what Clay and Webster were saying then, they were worried that Jackson--a former general--would become another Caesar or Cromwell. Jackson and the Whigs fought tooth-and-nail for years over issues such as the Bank and Indian Removal, with Jackson largely winning this contest, though he was forced to scale back his more radical ideas about curtailing federal power.
2. Secession was a response to Lincoln's election and fears of executive tyranny. We know how that turned out, although the South's resistance to racial equality after Reconstruction did have a substantial influence on the doctrine that came out of the Court.
3. The Populist Party and William Jennings Bryan were met by opponents who thought that Bryan would impose a socialist tyranny. That counter-mobilization, which coalesced around William McKinley, triumphed in 1896 and brought about a profound shift in constitutional law across several areas. (This is the subject of my new book, which will come out in the Spring).
4. The New Deal was challenged by a counter-mobilization on the left, led by Huey P. Long and others, that pressured FDR into enacting measures such as Social Security. Had Long not been assassinated, that slugfest would have significantly altered the trajectory of the New Deal.
The Tea Party is the latest manifestation of this phenomenon. It is a constitutionally self-conscious response to President Obama's claim of a mandate for sweeping change in 2008. So what should we look for assuming that the Republicans win one or both Houses of Congress?
One thought is that each of these conflicts has a flash point (the Bank, slavery, free silver). The obvious candidate for that today is health care. It is unlikely that Republicans will look at the results this Fall and conclude that campaigning to repeal that Act is a losing issue. President Obama, on the other hand, will not conclude that health care should be sacrificed. This sets up the possibility that Congress will seek to defund health care over the next two years (much as Jackson withdrew federal deposits from the Bank to cripple what he saw as an unconstitutional institution) and the President come up creative ways to keep the money flowing. The power of the purse may be the great constitutional issue of 2011 and 2012.