Jill Lepore: evaluation

Transcript context

…You’ve written a book on the Tea Party as a modern phenomenon, and part of that book includes examples of how they’ve misinterpreted the Constitution. Are there aspects in which you would say the Tea Party was right about the Constitution, and we’ve neglected what they had to tell us, to our peril? I think that constitutional interpretation is not as neat as that, like “These people were right, these people were wrong. ” Historically, we can see certain decisions are, from our modern vantage, unequivocally wrong. They tended to be decisions that were extremely controversial at the time. Dred Scott in 1857, the worst decision the Court ever made. People of the time said it was the worst decision the court ever made. And then it becomes the measure of “This is the worst decision since Dred Scott.” FDR in the 1930s, when the court strikes down a lot of the New Deal, he says, “This is the worst thing since Dred Scott.” Or Lochner in 1905. People say, “This is the worst decision since Dred Scott.” I don’t think we have that about, say, the Roberts court’s decision about the Affordable Care Act, which surprised people in the Tea Party by upholding the constitutionality of the Affordable Care Act under the broad interpretation of the Commerce Clause. I don’t think that there’s some striking national consensus that that decision was either right or wrong. The people I spoke to in the Tea Party were most agitated about health care. The provisions that Obama was proposing and then later were passed by Congress — these were things that were not in the Constitution, and they would carry around signs saying, “These things are unconstitutional.” And the court made a different decision, and I don’t think that we have a vantage on that that would suggest, “Oh yes, the Tea Party was right and the court was wrong.” And that’s the chief constitutional question that the people I talked to are interested in arguing about. But isn’t it good to have a certain dogmatism about at least some aspects of the Constitution? If we look today at the Emoluments Clause, arguably it’s being violated in a fairly large number of ways right now. And as far as I can tell, the world doesn’t seem to mind that much. We’ll see how that develops, but if we were more originalist and more dogmatic about our own Constitution, would there not be a greater outrage right now about the Emoluments Clause in a way that would be productive?…

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