The Return to Constitutional Authority
On Friday, Politico published an article offering a glimpse of hope that our political leaders may someday return to Constitutional principles and operate as they were originally intended to by the Founding Fathers.
GOP leaders have prepared a memo for all members of the new Congress and senior staff informing them that no bill may be introduced unless the sponsor has submitted for the Congressional Record a statement “citing as specifically as practicable the power or powers granted to Congress” to enact the measure. The memo included five examples of forms that sponsors could include with their legislation.
According to the new house rule, a bill submitted to the House floor that does not "cite its Constitutional authority" will not be considered. At the very least this memo may encourage our Congressmen to familiarize themselves with the Constitution, unlike this representative of New Jersey’s 2nd district who doesn’t know the difference between Article 1 Section 1 of the Constitution and the First Amendment.
The House GOP made a step in the right direction with this idea, but now the Senate needs to follow in its footsteps and hopefully turn this rule into a Constitutional amendment. After all, it is not like We the People are asking the Congress to do something outrageous and illegal. Quite the opposite, we are simply demanding they do what is legal and act in accordance with the powers enumerated to them in the Constitution.
Is this a sign of progress? Or, is there too much wiggle room in certain parts of the Constitution, like the Commerce Clause, for this initiative to make any real difference?
- Comment (12)
- · Quote
- · UnfollowFollow (2)
Comments :
Jul '10
Re: The Return to Constitutional Authority
While I would welcome a return to Constitutionalism, and the use of the amendment process rather than legislative or judicial fiat bring that excellent document appropriately up to date, I cannot imagine how that would come about. There are too many foul precedents and settled messes to resolve so long as the political calculus includes "moderate" Republicans and, of course, the Democrats.
But I am once more reminded: Despair is a sin.
Jul '10
Re: The Return to Constitutional Authority
The guy with the ponytail should be a Congressman. The Congressman who confused Article 1, Section 1 with the First Amendment should be working the drive-through window at Wendy's, where at least his inability to distinguish between an order for french fries or onion rings wouldn't impinge upon my freedom.
May '10
Re: The Return to Constitutional Authority
It does make the constitutional arguments from the sponsors explicit:
-All type X acts are interstate commerce
-All interstate commerce is subject to regulation according to the Constitution
-All type X acts are subject to regulation according to the Constitution
The new GOP rules would mandate the inclusion of arguments like the one above within each new bill, but the new rules won't subject the contemporary interpretation of the Commerce Clause or the General Welfare Clause to unique legal challenges. However, the rules will allow congressmen to detect the flimsiness of the arguments of sponsors.
Edited on Dec 19, 2010 at 3:09pmNov '10
Re: The Return to Constitutional Authority
Of course it's a sign of progress. Something we should remind all of the people in our sphere's of influence. It's extremely important. Even my 17 year old son knows the difference between Article 1, Section 1, and the First Amendment.
As far as making it a constitutional amendment, it's a great idea, but one would think it isn't required. Clearly it is.
Nov '10
Re: The Return to Constitutional Authority
It's a start, and it may actually force legislators to consider the Constitutional basis for their proposals (though I certainly wouldn't rule out lots of boilerplate written by interns or provided by lobbyist-lawyers).
Out of curiosity - not being a lawyer - would this impact the interpretation of a contested law in front of SCOTUS?
Dec '10
Re: The Return to Constitutional Authority
I think this is bigger than it appears. The courts often engage in gymnastics to justify a particular outcome constitutionally. They're often very inventive about the intent of the language and so forth.
This handcuffs the judiciary and tells them what the constitutional justification was intended to be.
In addition, it will force us to get back to first principles. As I often say, the Constitution ain't long, it ain't difficult and it's in English. But a lot of what we consider to be part of Constitutional Law is made up based on precedents and has a tenuous (at best) tie to the actual Constitution.
Granted, I don't think it'll cure any major problems with our legislation, but it will cause a lot of judicial activists some heartburn.
Aug '10
Re: The Return to Constitutional Authority
Sad news, authoritarians don't care about the constitution.
Congress has authority to pass any law it wants. The firewall was breached during the New Deal/Progressive age.
Unless we are willing to declare Social Security, anti-trust laws, the Federal Reserve, Medicare, the EPA and every other federal agency unconstitutional then we are hypocrites.
The general welfare, interstate commerce and necessary and proper clause has been expanded to allow the federal government unlimited powers.
Aug '10
Re: The Return to Constitutional Authority
Another reason Leftists don't care about the Constitution is it stops them from doing good. A random Obama official, Alex Gibbs, said the individual mandate was constitutional because it did good.
Saying a law does good so it is constitutional is amazing. The logic behind the argument confirms the unconstrained vision of man The government can pass laws to cure all of our ills.
Dec '10
Re: The Return to Constitutional Authority
Gimmick.
But it raises a more central question (one that everyone has taken for granted for years), why does the Court get to decide what is constitutional? Presumably Congress is cognizant of its own powers and will only enact legislation that it believes is constitutional. The measure described here in fact presumes that Congress is competent to determine the constitutional basis for its actions.
Likewise, the President took an oath of office to uphold the constitution and presumably would veto any act of Congress he deemed unconstitutional on the grounds that Congress lacked the authority to pass such a law. Thus, when the Court presumes to speak on the constitutionality of a law enacted by Congress and signed by the President shouldn’t we be suspect of the Court’s authority to do so? If two competent authorities (elected by the people) have found a law to be constitutional, why does the mere fact that one Justice long ago in Marberry opined his Court gets to speak on Constitutionality hold any sway. Where in the text of Article 3 does it say the Court can rule acts of Congress unconstitutional? Maybe the problem is the Court, not Congress.
May '10
Re: The Return to Constitutional Authority
Harry Huntington:
Presumably Congress is cognizant of its own powers and will only enact legislation that it believes is constitutional.
Letting Congress determine which laws are constitutional effectively cuts the courts out of their role in our government, (i.e., to check the other branches of government). Congress and the President are elected by the people and change often. To allow the Constitution to change as often was obviously not what the Framers had in mind. The Constitution was supposed to stand the test of time, with the legislature filling in gaps through legislation to reflect the will of the people at the time.
The view that Congress should decide the constitutionality is in essence, the living constitution argument. The problem is illustrated by laws like Obamacare. The President and the majority in Congress that enacted it both believe that Obamacare is constitutional. However, several Constitutional scholars have opined that the individual mandate may exceed Congress's powers
Another extreme example. What if Congress determined that white males can no longer vote. If passing a law presumes Congress considered the constitutionality and determined it constitutional, then the actual Constitution would have no meaning if Congress' actions cannot be reviewed
Jul '10
Re: The Return to Constitutional Authority
Mike Riscili
Letting Congress determine which laws are constitutional effectively cuts the courts out of their role in our government, (i.e., to check the other branches of government).
The Courts wouldn’t be circumvented because it shouldn’t be up to the Courts to make those decisions as part of the legislative process. Otherwise, every piece of legislation would have to be approved ultimately by the Supreme Court prior to signature by the president. (Although, that would slow legislation to a snail’s pace. Hmmm… Not a bad idea.) The purpose of the memo was to get people thinking about the Constitution – which hasn’t been done for decades.
Didn’t President Bush sign the campaign finance fiasco, intimating that the Courts could sort out the constitutionality? And didn’t most of us (Ricochetians) find that a very poor move on his part? That determination should have been made beforehand – and the result would have been: No Bill. (Let’s hope Obamacare likewise is found to be unconstitutional. The supreme irony is that the whole thing could go down in flames as in 2000 pages, someone forgot to add the severability clause. Damn, that’s rich!)
(continued)
Jul '10
Re: The Return to Constitutional Authority
There was a time when some of the fiercest debates on the House and Senate floors centered on whether or not a proposed bill was within the bounds of the Constitution. Ah. A return to the good old days. Yes, I do think this is progress notwithstanding the possibility of some squirrely reasoning. But that’s what the floor debates should be for. If after all that some people determine the enacted legislation to be unconstitutional, they’re free to petition the courts.