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An interesting piece in the WSJ
Congress Rediscovers the Constitution
Congress Rediscovers the Constitution
If the new Congress to be sworn in on Wednesday is the tea party's cardinal achievement so far, its most symbolic achievement will come on Thursday, when the first order of business in the House will be a reading, aloud, of the Constitution. That event alone will not bring us any closer to limited government. But it will help get a debate going that for too long has been dormant.
Already, House Democrats are lining up to ridicule a closely related rule that the Republican majority has said it will adopt, requiring members to cite the specific constitutional authority for any bill they introduce. "It's an air kiss they're blowing to the tea party," says Barney Frank, outgoing chairman of the House Financial Services Committee. Henry Waxman, outgoing chairman of the House Energy and Commerce Committee, all but dismissed any role for Congress in assessing the constitutionality of its actions: "Whether it is constitutional or not is going to be whether the Supreme Court says it is."
As a legal matter, Mr. Waxman is right; at least since Marbury v. Madison in 1803, the Supreme Court has had the last word on what the Constitution authorizes Congress to do. But well before that, and long after, members of Congress took it upon themselves to have the first word, often citing their oath of office.
In 1794, for example, James Madison, the principal author of the Constitution, rose on the House floor to object to a bill appropriating $15,000 for the relief of French refugees who had fled to Baltimore and Philadelphia from an insurrection in San Domingo. He could not, he said, "undertake to lay [his] finger on that article of the Federal Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents." The bill failed.
Throughout the 19th century, members of Congress and presidents alike rejected legislation because they believed there was no constitutional authority to enact it. The bedrock presumption of our polity, they understood, was individual liberty. The Constitution gave the federal government the authority to pursue certain limited ends, like national security and ensuring free interstate commerce, but otherwise left us free to pursue our ends either through the states or as private individuals. It did not authorize the federal government to provide us with the vast array of goods and services that today reduce so many of us to government dependents.
Already, House Democrats are lining up to ridicule a closely related rule that the Republican majority has said it will adopt, requiring members to cite the specific constitutional authority for any bill they introduce. "It's an air kiss they're blowing to the tea party," says Barney Frank, outgoing chairman of the House Financial Services Committee. Henry Waxman, outgoing chairman of the House Energy and Commerce Committee, all but dismissed any role for Congress in assessing the constitutionality of its actions: "Whether it is constitutional or not is going to be whether the Supreme Court says it is."
As a legal matter, Mr. Waxman is right; at least since Marbury v. Madison in 1803, the Supreme Court has had the last word on what the Constitution authorizes Congress to do. But well before that, and long after, members of Congress took it upon themselves to have the first word, often citing their oath of office.
In 1794, for example, James Madison, the principal author of the Constitution, rose on the House floor to object to a bill appropriating $15,000 for the relief of French refugees who had fled to Baltimore and Philadelphia from an insurrection in San Domingo. He could not, he said, "undertake to lay [his] finger on that article of the Federal Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents." The bill failed.
Throughout the 19th century, members of Congress and presidents alike rejected legislation because they believed there was no constitutional authority to enact it. The bedrock presumption of our polity, they understood, was individual liberty. The Constitution gave the federal government the authority to pursue certain limited ends, like national security and ensuring free interstate commerce, but otherwise left us free to pursue our ends either through the states or as private individuals. It did not authorize the federal government to provide us with the vast array of goods and services that today reduce so many of us to government dependents.
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