This ties into my thoughts on the libertarian challenge to the ACA:
From Ilya Somin:
The Tea Party Movement and Popular Constitutionalism
The rise of the Tea Party movement followed a period during which many academic students of constitutional law focused on “popular constitutionalism”: the involvement of public opinion and popular movements in influencing constitutional interpretation. Many of these scholars argue that popular constitutional movements have a beneficial impact on constitutional law, and some even contend that popular constitutionalism should supplant judicial review entirely. At the very least, the last generation of constitutional scholarship has established that public opinion influences and significantly constrains judicial interpretation of the Constitution.
Can Popular Constitutionalism Survive the Tea Party Movement?
The sudden emergence and prominence of the Tea Party movement raises important questions about the role of the Constitution in popular politics. More than any political movement in recent memory, the Tea Party movement is centrally focused on the meaning of the Constitution. Tea Party supporters believe that the nation is facing a crisis because it has abandoned the Constitution, and they seek to restore the government to what they believe are its foundational principles.
The Tea Party, the Constitution, and the Repeal Amendment
On February 19, 2009, CNBC financial correspondent Rick Santelli stood on the bustling floor of the Chicago Mercantile Exchange and pronounced what will be historic words: “We’re thinking of having a Chicago Tea Party in July. All you capitalists that want to show up at Lake Michigan, I’m going to start organizing it.” Rallies were held around the nation on April fifteenth of that year. Over the summer, Tea Party members showed up en masse at Congressional town halls. A September twelfth march on Washington drew thousands of people to the National Mall. This, in a nutshell, was how the social movement called the Tea Party was born.
The Constitutional Politics of the Tea Party Movement
Editor’s Note: this is the beginning of a series based on a panel that took place at the 2011 Annual Meeting of the Association of American Law Schools on the subject of The Constitutional Politics of the Tea Party Movement.
The Tea Party movement and its constitutional vision for the United States is perhaps the hottest topic in American public law today. The rising tide of popular support for the Tea Party movement has transformed what was once cast aside as a fleeting faction into a formidable force in American politics—one that could augur significant consequences for the contours of American constitutional law in the years ahead.
I’m thinking of doing a short essay, something like “Libertarian Popular Constitutionalism and the Challenge to the Affordable Care Act.” Write it now, doesn’t really matter how the Court decides ACA. Get it ready for publication in an online journal over the summer boom.
That would set the stage for a longer article, something like “Libertarian Popular Constitutionalism,” and would focus on all manners of change–the Second Amendment, originalism generally, ACA, free speech (Citizens United)–that the libertarians have effected.
I realize how fortunate i am that I have come to know many of the major actors in this movement. This should be fun.