Rodricks: Conservatives create constitutional myths

Legal scholar says interpretations of law are 'wrong and dangerous'

Soon after President Barack Obama's inauguration, "I want my country back!" became the shrill battle cry of the tea party. Garrett Epps, a legal scholar based at the University of Baltimore, has a battle cry of his own: "I want my Constitution back!"

Epps believes the tea party and the politicians it supports are among the collaborators in extravagant myth-making about the law of the land, and the movement has gone from the fringe to the conservative mainstream to the Supreme Court.

Right-wing "patriots," libertarian think tanks, members of Congress and Fox News are all engaged in using twisted and false interpretations of the Constitution to advance an anti-government, even anti-electorate agenda. It's wrong and it's dangerous, Epps says.

Thus the title of his book: "Wrong and Dangerous: Ten Right-Wing Myths About Our Constitution," just published by Rowland & Littlefield.

Epps, a former Washington Post reporter, teaches constitutional law and writing at the UB law school. He's written two previous books about the law, and he's a regular contributor on legal matters to The Atlantic online.

Epps has been on something of a sawdust trail of "far right constitutionalism" for a couple of years now, visiting a Christian-inspired "Constitution school," listening to lectures by self-proclaimed experts who declared virtually the entire federal government illegitimate.

Of course, having studied the Constitution for two decades, Epps had been used to hearing, reading and engaging conservatives on large questions about the law.

"America," he writes, "has always had a strain of conservatism that was thoughtful, grounded in history, and respectful of tradition. As a progressive, I often disagree with these conservatives about the nature of democracy, the wisdom of economic regulation. ... But I seldom thought — as I do more and more often today — that when engaging conservative arguments I was talking to polite people who simply do not live on the same planet as the rest of us. Since 2008, lunatics have taken over the conservative asylum."

As you can tell, Epps pulls no punches. He loves the Constitution and resents right-wing myth-making about it: The idea, for instance, that the states have the power to nullify federal law and ignore federal mandates.

Or the assertion, frequently made by conservatives and libertarians such as Ron Paul, that federal departments — from the Social Security Administration to the Internal Revenue Service to the Centers for Disease Control and Prevention — are unconstitutional.

Or the notion that the men who participated in the Constitutional Convention of 1787 wrote the document to restrain Congress and limit its powers.

Or that the 14th Amendment, which guarantees due process and equal protection for everyone, was added only to free the slaves and has no relevancy in today's world.

None of that is true, Epps says. Yet the loose collaboration of "far-right constitutionalists" lecture across the country, find easy access to AM talk radio and Fox News, even get to conduct seminars for new members of Congress.

In addition, Epps has found in his travels a significant library of books bearing the far right's message about the Constitution. "Walk into any bookstore anywhere in America," he says, "and you'll find titles like 'Who Killed the Constitution?'; 'The Politically Incorrect Guide to the Constitution'; 'Nullification: How To Resist Federal Tyranny in the 21st Century'; 'What Would The Founders Say?'; or 'The Constitution in Exile' — all expounding the far right's seductive, simplistic and hateful message."

On the other side of the ideological divide, Epps says, there's little to counter the far right's ludicrous interpretations of the Constitution.

Thus, "Wrong And Dangerous," an acerbic and decidedly nonacademic work written by an academic so that "ordinary people" and "non-lawyers" can push back against right-wing myths.

And thank you very much. It's about time someone from the progressive left picked this fight. It is no small matter, particularly when you consider recent Supreme Court decisions — the one on Obama's health care changes aside — that have rolled back the concept of federal regulation, from firearms to campaign donations.

Liberals and progressives tend to dismiss the far right as a lunatic fringe without giving a full argument to counter its claims.

That's Epps' point.

"It isn't that we have failed to explain the Constitution," he says. "It's that we too seldom try. Some scholars from top schools hold forth with polysyllabic theories of hermeneutics, or earnest invocations of Jurgen Habermas and Jacques Derrida, that ordinary citizens can't fathom. It's brilliant stuff; I like reading it. And it's the surest route to academic distinction."

But as a result, says Epps, few scholars perform outside the "academic ghetto."

So here he is, without shame, calling out the "mystics and charlatans" who've been selling myths about the Constitution to people who haven't even read it. (The document is published in full at the end of Epps' book. It's a good and important read — the book, and the Constitution.)

"Ordinary Americans love the Constitution at least as much as far-right idealogues," says Epps. "It's our Constitution, too. Before it's too late, we need to take it back."

drodricks@baltsun.com

 
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