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.
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.
There is, of course, no single template for “Tea Party Constitutionalism,” given that it is a large, somewhat inchoate movement that inevitably contains different, often conflicting, strains. As someone from Texas, I am tempted to focus on some of the more extreme ideas associated with various politicians wishing to take advantage of the anger projected by many Tea Partiers toward the national government. Thus at least two candidates for the 2010 Republican nomination for the Texas governorship (including the ultimately successful incumbent, Rick Perry) endorsed or at least flirted with nineteenth century ideas of “nullification” and even secession as a potential response to what is perceived as an overreaching national government. More striking, presumably, was the proclamation by the (unsuccessful) Republican candidate for the Senate from Nevada, Sharron Angle: “Our Founding Fathers, they put that Second Amendment in [the Constitution] for a good reason, and that was for the people to protect themselves against a tyrannical government . . . . In fact, Thomas Jefferson said it’s good for a country to have a revolution every 20 years. I hope that’s not where we’re going, but you know, if this Congress keeps going the way it is, people are really looking toward those Second Amendment remedies.”
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.
International remittances—”cross-border person-to-person payments of relatively low value” sent primarily by international migrants to family members in developing countries—alleviate poverty, support entrepreneurship, and foster the development of financial systems. Until recently, aside from prohibitions on financial interactions with countries such as Cuba or Burma, U.S. regulators have only indirectly addressed these monetary transfers. The Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) changes this, providing direct, substantive regulation of the industry for the first time. Dodd-Frank calls on the Board of Governors of the Federal Reserve System (Board) to craft more than a dozen regulations to enforce Dodd-Frank’s remittance provisions within eighteen months. These regulations can either stifle progress in the remittance industry or help it become more efficient. This Article recommends regulations that would enable a thriving business environment for transfer providers and preserve reasonable consumer protections. Part I describes the international remittance industry, including its role in enabling economic development and in alleviating poverty. Part I then predicts the changes that the industry is likely to undergo in the near future. Part II explains Dodd-Frank’s remittance provisions. Part III provides recommendations to the Board on how it can design regulations that best enable global economic development.
In a recent article Professors Lawrence Rosenthal and Joyce Lee Malcolm provided an intriguing debate over the standard of scrutiny that should be applied to restrictions on the Second Amendment in the wake of McDonald v. City of Chicago. This Article sets forth to illuminate two aspects of that debate. The first is Professor Rosenthal’s concern on the constitutionality of open-carry or conceal-carry prohibitions. He inaccurately claims that the founders left insufficient historical evidence to support such prohibitions. Thus this Article addresses those concerns through the use of “historical guideposts.” The second aspect this Article sets forth to address is Rosenthal and Malcolm’s characterization of the Second Amendment’s “well-regulated militia” language, for it highlights a historical and legal error that continues to pollute contemporary Second Amendment jurisprudence. As this Article will explain, a “well-regulated militia” does not merely equate to “well-trained,” nor is it a vehicle to analyze gun control regulations in the constraints of the opinion in District of Columbia v. Heller.