Congress and the Constitution

I was happy to hear that the first order of business in the House of Representatives was reading aloud the Constitution. Of course, this alone will not bring us any closer to limited government, but it will help focus on an important issue--the role and power of the Congress in relation to the Constitution. An article by Roger Pilon of the Cato Institute explores this issue. I read it and wanted to share it with you.

Pilon says that for much of the history of the United States, members of Congress and presidents alike rejected legislation because they believed there was no constitutional authority to enact it. They all believed the key element for America 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 huge array of goods and services that today turn so many into dependents.

The first question the new Congress will be asking of any proposed law is simple (but overlooked lately): Does the Constitution authorize us to pursue this end? If not, that ends the matter. If yes, the second question is: Are the means we employ "necessary and proper," as constrained by the principles of federalism and the rights retained by the people that are implied by a government of enumerated powers? That's pretty simple. The Constitution was written to be understood by ordinary citizens.

Pilon then explains how modern constitutional law got so complicated and federal power so expansive. It's true that several provisions in the Constitution were written broadly to allow for contingencies. But those provisions were not supposed to create boundless congressional power. The idea was that any political redress of unexpected problems would be done only in conjunction with the larger structure, aims and principles of the document.

The author sees the growth of government in the last one hundred years due to the rise of progressives. They rejected the Constitution's plan for limited government, advocating social engineering schemes instead. Rule by government experts was the order of the day. As people and politicians succumbed to those ideas, especially in the states, courts would often block the schemes in the name of constitutional liberty. Can you imagine? The courts were on the people's side. Man, those were the good old days.

But under the Franklin Roosevelt administration, according to Pilon, the courts buckled. They essentially gave Congress the power to redistribute and regulate at will, eviscerating the very foundation of the Constitution: the doctrine of enumerated powers.

This year's Congress needs to get to the root of the problem if the representatives want to start restoring limited constitutional government. There are several things they can do, Pilon believes.

First, they'll have to keep the debate focused on the Constitution, not simply on policy or practicality. Second, they'll have to call a halt to the idea that Congress can do virtually anything. The Supreme Court was wrong in allowing Congress to exercise power not granted it by the Constitution, and courts today are wrong when they uphold those precedents—even if they're not in a position today to reverse them until Congress takes greater responsibility. Third, Congress has to start taking greater responsibility. It should stop letting the President take power from it.

This is going to be tough, and it will take years. But, says Pilon, "the alternative—our Leviathan state, which recognizes no limits on its power—is simply unconstitutional." Amen.