Texas Governor Perry gestures during the Republican presidential candidates debate in Tampa / ReutersAnyone who disagrees with Rick Perry is part of the Big Conspiracy. Ben Bernanke is "treasonous." Climate scientists are scamming grant money. Supporters of Social Security aren't wrong, or confused, or simply reasoning differently than Perry -- they are telling a "monstrous lie."
So it's not surprising that Perry's view of the Constitution is conspiratorial as well. At Monday's tea-party debate, he was asked about his statements in Fed Up!: Our Fight to Save America from Washington that Social Security is and always has been unconstitutional. He said he'd rather talk about current matters than "spend a lot of time talking about what those folks were doing back in the '30s and '40s."
But in the book he does just that. It turns out that the last century has been -- well, a conspiracy, a plot by progressives, liberals, and sinister Supreme Court justices such as Anthony M. Kennedy, "who wakes up each day basking in the glow of the power to swing the Court." (Note that even as conservative a figure as Kennedy is not simply mistaken, or of a different opinion -- he must have evil motives.)
This vast conspiracy stretches back a century. First, "the American people mistakenly empowered the federal government during a fit of populist rage in the early twentieth century by giving it an unlimited source of income (the Sixteenth Amendment) and by changing the way senators are elected (the Seventeenth Amendment)." This was a brilliant success for conspirators whose "idea of change is to exploit fear in order to exercise greater control rather than watching to see where the American imagination takes us."
According to Perry, there actually was some kind of Depression, but the government's response was not compassion or an attempt at recover; it was another plot. "An arrogant President Roosevelt and an emboldened Congress saw the opportunity to use a crisis to expand Washington's influence," and the result was not jobs and hope for millions, but further steps toward dictatorship. No result of his treason is more damaging than Social Security, "a crumbling monument to the failure of the New Deal" that we have "been forced to accept for more than 70 years now."
Fed Up! represents Perry's claim to be a constitutional thinker. Readers must judge for themselves the elegance and force of his logic. But after reading the book, a fair-minded reader of Fed Up! might easily conclude that by the time Rick Perry gets through preserving, protecting, and defending the Constitution, there will hardly be one clause left standing on another.
Perry's constitutional preservation begins with a deletion and an insertion. First, the deletion: As Perry reads the Commerce Clause, it doesn't include the word "commerce." That word may be in the Clause, but it doesn't mean "commerce" if that involves "the states' 'purely internal affairs'"--a restriction that is not in the original text.
The insertion comes in the Tenth Amendment. That provision, he says, provides that "all powers not specifically granted to the federal government are reserved to the states and to the people." That is, of course, not what the silly Amendment says. The word "specifically," isn't there--nor is "explicitly," or "expressly" or any other of the words of limitation "Tenthers" try to sneak into it. James Madison, the author of the Bill of Rights, explained that it had been left out because "it was impossible to confine a government to the exercise of express powers, there must necessarily be admitted powers by implication." But if you just look at the Constitution as if it said "specifically," you realize that any regulation of health care, labor, the environment, or pensions is completely unconstitutional.
The next reform comes in the role of that nest of traitors, the Supreme Court. "[W]e allowed the Supreme Court and its lower courts to assume a role not envisioned for them by the Founders. We allowed them to become policy makers by judicial fiat." When did that happen? Remarkably enough, it was not during the Gilded Age, when the Court aggressively invalidated any federal or state regulation of the economy. That was a glorious time by and large, where the Court used its role "as the guardian of the rule of law and of our most basic founding principles." Things went south only after the Court began to approve laws like the Fair Labor Standards Act and Social Security.
Perry's ideal judges would keep their noses out of questions like individual rights and even, remarkably, the functioning of courts. "[T]he states know best how they wish to punish criminals and for what crimes," Perry writes. "[O]ur system works very well, and for Washington, and in particular the Supreme Court, to step in and tell us, or any other state, whether it is right to execute a heinous criminal--or tell us how to carry out justice--is the height of arrogance and disregards federalism at its most basic level." (Note that by these standards even Justice Antonin Scalia is a crazed liberal activist; he has been very insistent that states must preserve, for example, the right to confront hostile witnesses or to have all elements of a crime proved beyond reasonable doubt. )
But editing the existing text, and neutering the Supreme Court, is only the beginning of Perry's constitutional ambitions. Like every other serious Republican candidate, Perry supports the new Balanced Budget Amendment. And an Abortion Amendment. And--after some prodding from the religious right--a federal Marriage Amendment. By the end of his first excursion into the Article V process, then, we will have a federal government that is too feeble to tax or spend in support of its enumerated powers, but freshly empowered to regulate our most intimate relationships; state governments that can nullify the Affordable Care Act but are blocked by federal power from protecting women's reproductive rights.
Next comes repeal of the Sixteenth Amendment, ending the income tax forever. And he's not done yet. We also need, he writes, "a 'clarifying' amendment--or series of amendments--to the Constitution. Such an amendment might, for example, clarify the scope and intent of the Fourteenth Amendment. As I have discussed, the Fourteenth Amendment is abused by the Court to carry out whatever policy choices it wants to make in the form of judicial activism."
Perry doesn't spell out all his "clarifications," but it's a pretty good bet that equal protection for women, and the First Amendment prohibition of "establishment of religion," are good candidates for a makeover.
Perry's Constitution has a true antebellum quality. As he explains, "Federalism enables us to live united as a nation . . . while we live in states with like-minded people who share our values and beliefs. . . . If you don't support the death penalty and citizens packing a pistol, don't come to Texas. If you don't like medicinal marijuana or gay marriage, don't move to California." It was precisely this view of American life--that "like minded people" could close their local communities to those who differ --that the Fourteenth Amendment was ratified to destroy.
The Perry Constitution, thus, is as radical as any that has been offered as a serious political program in more than 100 years. It is hostile to national self-government by elected officials, dismissive of the rights of individuals, and contemptuous of the very notion of democracy.
Worse than Perry's doctrines, however, is the psychopathology behind them. Presidents, Supreme Court Justices, even the people--if they disagree with Perry, they are traitors. He does not seek dialogue with those who disagree; he wants them gone.
This article available online at: