The Tea Party Movement and the Perils of Popular Originalism

The Tea Party movement presents something of a curiosity for constitutional theory because it combines originalist ideology and popular constitutionalist methods. Like minotaurs, werewolves, and other half-man, half-animal hybrids of myth and legend, the Tea Party’s hybrid of originalism and popular constitutionalism serves to expose the limitations of both sources upon which it draws. Although originalists assert that interpreting the Constitution according to its original meaning would take politics out of constitutional law, the Tea Party movement shows that originalism also provides a powerful political rhetoric. Moreover, while popular constitutionalists assert that democracy would be advanced by empowering the people to effectuate their constitutional understandings through ordinary politics, the Tea Party movement shows that when a popular movement advances a narrow, nationalist understanding of the Constitution, popular constitutionalism can also serve to restrict popular democracy.