Enumerated Powers Act

Arizona Representative John Shadegg has been trying for lo these many years to convince Congress to pass the Enumerated Powers Act into law. Simply put, the measure would require that all bills brought before the House contain a statement citing which specific part of the Constitution authorizes the legislation. For a group of people, each of whom swore an oath to uphold the Constitution, you would think Shadegg’s idea would be a no brainer. Instead, the idea hasn’t gotten enough co-sponsors to give it a plausible chance.

It might be interesting if congressional candidates were asked about their support for the bill during the course of this summer’s town hall meetings and campaign rallies.

  1. Adam Freedman
    C

    I sympathize with the intent, but I doubt whether the bill would make much of a difference. Federal legislation usually already includes a statement of the legal basis. The Obamacare bill, for example, claims to be an exercise of Congress’s power to regulate interstate commerce. The thing is that the Supreme Court’s interpretation of the Commerce Clause has been so far off-base, Congress might get away with it. The bottomline is that Congress can shoehorn anything into the Constitution — what we need are more Supreme Court Justices who will call their bluff. And for that, of course, we need a different President. The current occupant of the White House is a former Constitutional Law professor, which almost guarantees contempt for the Founding Fathers.

  2. Adam Freedman
    C

    Yes, Rob, I’m afraid so. Akhil Amar of Yale Law School (a lefty, but not crazy) claims that in some university courses on the Constitution, professors don’t provide copies of the Constitution so as not to confuse the students!

  3. The Warning

    Conservatives are always trotting out this bill or that, trying to hold people to the Constitution; but if people don’t take their sworn oath to protect and defend the document seriously, they certainly won’t take that seriously. The only thing that gets their attention is the prospect of failed reelection, start making an example of some of these long term incumbents, and our words will carry more weight.

  4. Mark Wilson

    I love the way Justice Scalia puts it: To the “living Constitution” crowd, the Constitution doesn’t mean what it says, it simply means what they think it ought to mean.

  5. Dave Carter
    C

    Adam, I fear you are exactly right.  And I had heard that they included language that referenced the Commerce Clause, almost as if to add insult to injury.  Though if they were already citing relevant clauses, I wonder why the bill hasn’t gained traction.  In any event, my primary hope is in citizens putting their representative on the spot vis a vis this specific proposal, and perhaps the larger issue of a government that is divorced from all Constitutional constraints. 

  6. Mark Wilson

    I get the impression that the common view of the Constitution today is a document that just defines a handful of things the government can’t do. Who still knows what enumerated powers are these days?

  7. John Boyer

    Anytime someone doesn’t want to deal with the primary sources, our academic culture dies a little bit more.

  8. Jimmie Bise Jr

    I’ve always wanted to try that “living document” think on a progressive with whom I’ve made a contract. Maybe I could buy a car from them, then decide not to pay for it halfway into the term on the grounds that the living contract has to keep up with my modern lifestyle, which includes an iPad but not a payment to them.

  9. Rob Long
    C

    Adam, is that a prerequisite to being an esteemed constitutional scholar? That you can barely tolerate the Constitution itself?

    I fear it is. Glad that cardiologists don’t have the same attitude.

  10. Rob Long
    C

    This is an excellent idea, Jimmie. But isn’t that sort of happening right now? If you were a Chrysler bondholder, you thought you had a deal. But then, someone from the Obama Treasury Dept. decided that there were “emanations from the penumbra” of those bond terms, and promptly cancelled them.

    If they can do it, why can’t you?

    Well, of course, you can. That’s what the “loan modification” program is, isn’t it? Simply a way of deciding that the terms of an agreement are no longer all that cool with at least one of the parties.

  11. Mike Riscili

    I don’t know what is more frustrating; the “living” Constitution theory or the fact that we don’t hear nearly enough how its just not accurate. The Constitution says exactly what it says for a reason and any “rights” left out were done so with purpose. To the extent there are things that the Constitution doesn’t address, that was done so purposefully by the Founding Fathers so that future generation can fill in the gaps through, wait for it . . . legislation! Rather than being ignorant that the future generations may not share the same attitudes, values, etc., the Founding Fathers knew full well that would be the case and left those future generations to pass laws that more accurately reflected the times, which could be replaced easily if it didn’t reflect the values of society (unlike Constitutional rights). The FF didn’t want one generation to bind another with “rights” that can’t be undone. While I’m more of a libertarian and enjoy my privacy, I’m still looking for the copy of the Constitution that has the right to privacy in it. My copy seems to be missing that clause.

  12. John Yoo
    C

    Now that constitutional law professors have been insulted (repeatedly), I must come to bury them, not praise them. I use a popular casebook to teach Constitutional Law I. It is filled with Supreme Court cases. The Constitution appears as an appendix at the end. It shows you the priorities of law professors on the subject. I asked one of the authors why the Constitution’s text does not appear in the beginning, with an explanation of the history of the founding, the Civil War, the New Deal, and so on. He replied that what is important is the Law of the Constitution, not the Constitution itself.

  13. Aaron Miller

    Laws are tools which cannot bypass basic human nature. Any law is ultimately dependent upon the will of individuals — the will of officials to enforce it and the will of citizens to obey it. If either fails and one cannot overpower the other, the law is rendered moot. The Constitution is not immune from this reality.

    The key to restoring faithfulness to the Constitution is to change individual hearts and minds so that they see its value. The Constitution no longer reflects the culture of many Americans, let alone politicians. Even many conservatives have become accustomed to government intervention and regularly look to the federal government to solve problems which could be handled otherwise. It’s not just the government that has changed these past two centuries. Americans have changed.

    Any system will ultimately reflect the individuals who comprise it. The struggle to guard and restore the Constitution begins in face-to-face relations with our neighbors.

  14. Michael Labeit

    Contemporary liberal interpretations of the Constitution have taken us down an almost irreversible road. Routine, precedent-worship, and general juridical inertia ensure that the Constitution will continue to be used as a source of justifications for economically detrimental expansions of the government. A little on the interpretation problems if the Constitution: http://labeit.economicpolicyjournal.com/2010/05/chaos-of-constitution.html

  15. Pat in Obamaland
    John Yoo:: Now that constitutional law professors have been insulted (repeatedly), I must come to bury them, not praise them. I use a popular casebook to teach Constitutional Law I. It is filled with Supreme Court cases. The Constitution appears as an appendix at the end. It shows you the priorities of law professors on the subject. I asked one of the authors why the Constitution’s text does not appear in the beginning, with an explanation of the history of the founding, the Civil War, the New Deal, and so on. He replied that what is important is the Law of the Constitution, not the Constitution itself. · May. 26 at 11:07am

    Amen, Professor Yoo. My Constitutional Law book not only skipped over the Founding and key historical moments, but you would think the Supreme Court decided Marbury v. Madison, McCullough v. Maryland, and then took a nap until the Roosevelt administration.