If tea party darling Michele Bachmann gets her way, conservative broadcaster Sean Hannity, Fox legal analyst Andrew Napolitano and David Barton, a Christian evangelist who has said church-state separation is "a myth," will make up the faculty roster when the first classes of her new constitutional conservative caucus convene in the next Congress.
The Minnesota Republican recently spoke on Beck's radio show about a new academic counterpart to the tea party caucus she founded earlier this year.
The goal is to bring newly elected lawmakers together for weekly classes on the Constitution, the Bill of Rights and the Declaration of Independence before they are "co-opted into the Washington system." If just 20 or 25 new members join her caucus, she said, "we can hang together and if an unconstitutional bill comes before us, something like a stimulus or a government takeover of health care, we can stop that bill."
Legal education is in short supply in a GOP freshman class in which 35 members have never served in elective office and that includes funeral directors, car dealers and a pizza restaurant owner.
Bachmann said she hoped to bring Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito to speak to lawmakers. There was no mention of the Supreme Court's more liberal members, including Stephen Breyer, who has a new book out about the Constitution.
The congresswoman said she also wants "other legal experts who understand our nation's founding documents. David Barton would have a lot to say about that as well."
"Professor Barton" is a regular lecturer at Beck's "university." He has a bachelor's degree in Christian education from Oral Roberts University and is best known for his conservative group WallBuilders, which teaches that America was founded as a Christian nation.
"Scholars such as David Barton, members of the media who cherish [the founding] principles such as Sean Hannity, honorable commentators such as Judge Napolitano, honorable judges and justices, and leading legal minds will and have been invited to speak," Brooke Bialke, Bachmann's deputy chief of staff, said in an e-mail. "Topics ranging from the commerce clause to the intersection of constitutional principles with daily concerns such as Medicare will be covered."
Of the three "scholars" named, only Napolitano, a former New Jersey judge who hosts "Freedom Watch" on Fox Business News, is a lawyer. Hannity is a college dropout.
"I hope the new members -- as well as returning ones -- do not get their constitutional understanding from an echo chamber rather than from the marketplace of ideas," said New York Democrat Jerrold Nadler, outgoing chairman of the House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties.
He cited some new members with "bizarre ideas about the Constitution, some of which are dangerous." Among them: the belief that civil rights laws are unconstitutional; that the 14th Amendment, which gives automatic citizenship to anyone born in the United States, applies only to freed slaves and their descendants; and that the 17th Amendment, which provides for direct election of senators by the people instead of state legislatures, should be repealed.
Nadler said he hoped such ideas would be "confined to the fringe" of the new Congress.
Education or Propaganda?
Bachmann's caucus classroom is the culmination of a populist backlash by conservatives who consider the policies of President Barack Obama and his Democrats not just bad policies but unconstitutional ones.
Interviews with both liberal and conservative constitutional scholars reveal concerns about the curriculum even as they applauded, in theory, the idea of enlightening lawmakers.
"Education is always a good idea, but not if it is so one-sided as to be a form of propaganda," said Ira Lupu, a Harvard-trained law professor at George Washington University. He doubted any sitting Supreme Court justice would participate because "it is overtly political and would involve them speculating on the decisions that might come before them."
Michael McConnell, a former federal judge who heads the Constitutional Law Center at Stanford University, thinks Bachmann has "an excellent idea."
"It would be nice if all legislators, and not just those who describe themselves as 'constitutional conservatives,' sought further education about the Constitution. Maybe she will inspire some on the left to go and do likewise," he said.
But Dennis Goldford, who teaches constitutional law at Drake University in Des Moines, Iowa, and will teach a course titled "Federalism, Federal Power and Tea Parties" in the spring, said Bachmann wants to "cherry pick" not only which judges she would bring in but which parts of the Constitution she prefers.
Take states' rights, upon which conservatives claim the federal government has trampled.
Goldford said Beck and other tea party followers routinely insert the word "expressly" into the Constitution's 10th Amendment, which assigns "powers not delegated" to the federal government to states or the people. But it isn't there. The word is, however, in the states' rights section of the Articles of Confederation, the document the Constitution replaced after the framers decided the nation needed a stronger central government.
"The tea partiers are denying that the federal government has any implied powers," he said, even though the Supreme Court ruled that it does as early as 1819. "To read the Articles of Confederation version of national power into the Constitution that replaced [it] is to do both theoretical and historical damage to the proper understanding of that Constitution."
"Many tea partiers are either ignorant of or simply unaccepting of the fact that many basic norms of American constitutional law have changed since 1787," said Sanford Levinson, a University of Texas law professor who earned his law degree at Harvard.
While Scalia is a champion of constitutional originalism, which tries to hew to the original intent of its authors, his view is controversial in academic circles. Yet even McConnell, a conservative who is a leading authority on originalism, said, "If I were running this project, I would deliberately seek out a range of perspectives."
Lupu said many in the tea party talk about the founding document as if the protections of the Reconstruction amendments or the last 75 years of developed constitutional law never happened.
And the idea that the Founding Fathers were all on the same page? Nonsense, Lupu said. "Alexander Hamilton favored a broad view of the spending power, James Madison a narrower view."
Curt Levey, the Harvard-trained executive director of the conservative Committee for Justice, said instructors should come from across the political spectrum, "assuming liberal scholars are willing to participate. Given the view on the left that the Constitution is 'living' -- that is, largely malleable -- there may be some resistance to the very idea of teaching enduring constitutional principles."
Ideas about what is and isn't constitutional change over time and trail the political winds.
"Obamacare may or may not be constitutional," Levey said, "but all Americans should be concerned that its supporters in Congress arrogantly dismissed questions about its constitutionality as if such questions were silly."
Democrats say the law is constitutional and dismiss recent lawsuits as more about politics than law.
She said lawmakers constantly include language in bills that would give them power to overrule decisions made by executive agencies. Never mind that the Supreme Court cited debates from the Constitutional Convention when it ruled such legislative vetoes unconstitutional.
"Everyone just ignores them," she said.
Whether the new classes will create more informed lawmakers remains to be seen. But Stanford's McConnell knows one thing: "The tea party movement certainly has kindled a great deal of interest in the foundational principles of our republic, and that is surely a good thing."