"POPULAR CONSTITUTIONALISM" AND ASTROTURF CONSTITUTIONALISM

In today's New York Times Week in Review there's a piece from Adam Liptak arguing that the tea party movement has made the Constitution central to our national political conversation, and that that's a good thing:

... The content of the movement's understanding of the Constitution is not always easy to nail down, and it is almost always arguable....

Not a few constitutional scholars say that it is possible to quarrel with the particulars while welcoming the discussion.... The larger point, these scholars say, is that the Supreme Court should have no more monopoly on the meaning of the Constitution than the pope has on the meaning of the Bible.

"It really is open to interpretation by anybody, in what I sometimes call the lawyerhood of all citizens," said Sanford Levinson, a law professor at the University of Texas. "Anybody in a bar can get into a shouting argument over what equal protection means, or the right to free speech."

Those arguments can and should have consequences, according to scholars who endorse what they call "popular constitutionalism."...

The problem is that if the teabaggers get their way regarding the Constitution -- Tentherism and all that -- it's not going to be because the grassroots triumphed over the elites, but because the elites fomented, used, and manipulated grassroots anger to achieve their ends.

Dick Armey and Rupert Murdoch and their ilk obviously aren't allying themselves with Tenthers, and helping to broadcast their message to the nation, because they savor the company of like-minded citizens -- they're allying themselves with these folks, and nudging them further, because arguments against, say, the constitutionality of health care or cap and trade could very well prevent changes loathed by Big Medicine or the energy industry from ever taking effect.

And even the issues that aren't really meaningful to fat cats -- the argument, for instance, that the Constitution prevents the feds from regulating commerce in guns that are made and sold within one state -- are a means to keep a key segment of the voting public fired up and angry, and thus willing to vote for far-right Republicans ... who will, inevitably, do the fat cats' bidding once elected. In this way, teabag constitutionalism serves the same purpose that the culture war has always served for the right: as a motivator to get the base to the polls, where they think they're voting pro-"traditional values," while the fat cats know they're voting pro-fat cat.

So the "popular constitutionalism" Liptak sees isn't strictly "popular"; Armey and Murdoch's on-air hosts are service as force multipliers for "the people," as a means to their own ends.