Congress

An Inconvenient Constitution

|

It's that time of the year again: time for the re-introduction of the perennially hopeless Enumerated Powers Act in Congress. Rep. John Shadegg (R-AZ) has pimped the idea—a law requiring members of Congress to cite the specific constitutional provision authorizing their legislation—for years in the House. He introduced the bill's latest House-side iteration back in January. This week, Senator Tom Coburn (R-OK) introduced the bill in the Senate.

Woe betide those who would force Congress to justify legislation with reference to the Constitution. At best, according to Andrew Grossman of the Heritage Foundation, it's just an educational exercise:

Though the Act could not guarantee the constitu­tionality of legislation, it would have a significant effect on Congress. Most clearly, when invoked it would shift debate to fundamental questions of the rule of law. There is an educational value to this exercise that stands to attract additional Members, over time, to the "constitutional caucus."  

Most importantly, requiring legislation to state the basis of its authority would reveal the hollow­ness of the constitutional doctrine underlying so much congressional action. Every bill would be an opportunity for Americans to think seriously about our constitutional order, the wisdom of its design, and the consequences of departing from its strictures.

Even in his pessimism, Grossman seems hilariously optimistic about a bill that, if passed, would probably be as effective at "educating" members of Congress (and the public) as the Constitution already is at constraining them.

It's a nice thought, anyway.

At Reason: Jacob Sullum covered Coburn's delightful obstructionism, Katherine Mangu-Ward wrote about his war on pork, and Dave Weigel asked whether Coburn is "an extreme social conservative, a libertarian hero, or both?"

Advertisement

NEXT: Mr. Kerry Goes to Hollywood

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. So the practical effect would be to rubber stamp the words “commerce clause” on every piece of unconstitutional legislation? Isn’t that the normal excuse?

  2. Mommy,

    What was the Constitution?

  3. One of Rush Limbaugh’s replacement hosts last week was arguing against civil disobedience to the 2010 census on grounds that anything was allowed, even if not necessary and proper, if it wasn’t a power expressly prohibited by the Constitution.

  4. nice idea – hope they pass it.

  5. Members of Congress can be educated? Did I miss the special election that threw every incumbent out of office and start from scratch?

  6. It’s that time of the year again: Windmill season.

  7. It’s a neat idea for legislation would it, itself pass constitutional muster?

  8. There isn’t a single US Senator who mirrors Ron Paul by routinely voting against extra-Constitutional legislation. Not even Coburn or DeMint. So Coburn and the 17 cosponsors are either totally ignorant of the bill’s underlying aspiration, or willfully vote for bills they know to have no constitutional basis. The same can be said of all but a handful of the House cosponsors.

  9. They already do that. Bills always include a preforma finding that whatever issue they are regulating affects interstate commerce and is thus permissible under the Commerce Clause. You can fit anything under the post Lochner Commerce Clause. I don’t see how this law would accomplish much.

  10. What would be wrong with being a social conservative and a libertarian hero?

  11. The same can be said of all but a handful of the House cosponsors.

    And John Shadegg isn’t among the handful.

  12. The Commerce Clause is virtually a general grant of police power already, so it can be used to justify most legislation. Clearly wrong, given that the Constitution was expressly drafted as a limited grant of specific, enumerated powers, but no one cares about that stuff any more.

    Why people sit back and watch government grow stronger, less accountable, more corrupt, and, frankly, less legitimate is beyond me.

  13. Even in his pessimism, Grossman seems hilariously optimistic about a bill that, if passed, would probably be as effective at “educating” members of Congress (and the public) as the Constitution already is at constraining them.

    It’s a nice thought, anyway.

    It would mean that at least one staff member would have to do some basic research into how to try to pretend a given bill was an enumerated power. The Congressional member might actually read that statement when checking his or her staff’s work on their bill.

    But, yeah, the only educational process legislators understand is getting booted out of office. It is really easy to rationalize your behavior when it is in your personal interest to believe you’re doing the right thing.

  14. Pro Libertate,
    Because people keep getting “free stuff” on someone else’s tab. A great way to get re-elected is to bring back lots of $$$ to your district. Everything else is irrelevant.

  15. One answer: The Commerce Clause

  16. Rep. Shadegg lost all of my respect when he voted for the initial bailout late last year. He has zero credibility or shame.

  17. “Why people sit back and watch government grow stronger, less accountable, more corrupt, and, frankly, less legitimate is beyond me.”

    Apparently, most find it entertaining.

  18. “… requiring legislation to state the basis of its authority …” You mean, like, “We won”?

  19. I’d rather see the requirement that each bill be put on trial for its constitutionality before any vote could be taken. That is to say, a requirement that the constitutionality of each bill be thoroughly debated, and the transcript of that debate, or summation of its results (in a form similar to a Supreme Court opinion) be put on the record, so that congress critters could not easily claim later that “nobody” voiced concerns or doubted the constitutionality of some heinous legislative Act. If the Constitutional Debate requirement was not satisfied, a law could be challenged and struck down in court on that basis (and, in a just world, penalties could be assessed against the legislators who voted for, or the President who signed, any Bill that wasn’t so debated).

  20. Why people sit back and watch government grow stronger, less accountable, more corrupt, and, frankly, less legitimate is beyond me.

    Cowardice. Selfishness. Power-accrual. Stupidity.

  21. I think we need an amendment to remove the commerce clause entirely. The need for the feds to moderate interstate commerce in any way is not justified by history, and the current topsy-turvy inversion into the “intrastate commerce clause” is a shitstain directly on the founding fathers faces.

  22. Ben: I would completely support a Constitutional Amendment that clarified the limits of the Commerce Clause — perhaps defining “Interstate Commerce” and the intent of “regulation” (as opposed to, say, prohibition). Wickard and Raich, in particular, must be mooted. The idea that by being self-sufficient, one “affects commerce” (much less INTERSTATE commerce) by NOT participating in commerce is specious and absurd. (And, as we have seen, corrosive to fundamental liberty.)

  23. Randy Barnett has a somewhat more intrusive approach, and one that doesn’t rely on Congress’s goodwill. He talks about it here.

  24. But whether the Constitution really be one thing, or another, this much is certain – that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist.

  25. Lysander, you win the thread! To which cemetery plot should we deliver your prize?

  26. Dave Weigel asked whether Coburn is “an extreme social conservative, a libertarian hero, or both?”

    He’s a floor wax, *and* a dessert topping.

  27. I’m with Lysander’s ghost (in more than one way, but not the dead way.)

    Constitution has always needed teeth, so that the tiny steps out of bounds would have been punished, and not lead the the miles out of bounds state we are in now.

    As the highest law in the land, it’s a joke, just as a law against murder would be a joke, were there no penalty for breaking it.

    Glenn, I followed your link, but the videos don’t work. I have a Mac that far exceeds the minimum requirements they list (8 core, 8gb RAM, TB’s of HD, multiple displays, latest OS, latest firefox, safari and omniweb.) So apparently they’ve got some technology problems.

  28. Glenn, I followed your link, but the videos don’t work. I have a Mac that far exceeds the minimum requirements they list (8 core, 8gb RAM, TB’s of HD, multiple displays, latest OS, latest firefox, safari and omniweb.) So apparently they’ve got some technology problems.

    Just admit it: this was just an excuse to brag about your pimp rig.

  29. I would completely support a Constitutional Amendment that clarified the limits of the Commerce Clause –

    I would strike the clause, and simply prohibit the states from erecting trade barriers against each other, which was the whole point of the commerce clause in the first place.

    -jcr

  30. Elemenope….

    Nah, if I was just bragging about the goodies, I’d have described the rest of it:

    Here, here and here.

    Now, that’s bragging.

    🙂

  31. jcr…

    What’s the problem with states erecting trade barriers? It’s ok for the nation (congress does it all the time), so why not for the states? Seems like a perfectly valid means of negotiation to me.

  32. The Pols aren’t even reading the bills before passing them, you expect them to research the Constitution as well?

    I still support teh Enumerated Powers act, it might keep some dumb-ass bills from even being proposed, more from laziness than anything else, but whatever keeps the Good Idea fairy down.

  33. We can thank the intransigent South for sliming the concept of States’ rights. Like several others, our State legislature has passed a Tenth Amendment bill. If we’re going to get our country out of the mess we’re in, we’re going to have to push back, hard! Oh sure, there’s all kinds of reasons why we can’t do this and that – we can’t be seen as intemperate or rude – hey, lets spend another few decades dithering. Things don’t change by themselves; apple carts must be upset. Start reading up on nullification.

  34. Constitution? We don’t need no steenkin’ Constitution, we’re the federales!! Vamanos!!

  35. It’s somewhat quixotic, but I respect Shadegg and Coburn more than most in DC (not saying much, I grant you), and it might at least require the *appearance* of adherence to the constitution by our out-of-control congress.

  36. “””Why people sit back and watch government grow stronger, less accountable, more corrupt, and, frankly, less legitimate is beyond me.”””

    I disagree, they don’t just sit back, they partisipate too.

    “””Constitution has always needed teeth, so that the tiny steps out of bounds would have been punished, and not lead the the miles out of bounds state we are in now.”””

    If only we can get a constitutional amendment to change that.

  37. “pimped the idea”?

    Pimp, as in “To serve as a procurer of prostitutes”?

    You either don’t like the politician who “pimped”, or you don’t like the idea that he “pimped”.

  38. Sorry Ben, I cannot let this pass. Style, efficiency, and organization matter.

    Being a guitarist helps too.

    As you were. LOL!

  39. hi,
    everybody, take your time and a little bit.afdafdsf

Please to post comments

Comments are closed.