Congress and the constitution

[nancylebov]

The new session of Congress will open with a reading of the constitution, and the Constitution will have to be cited with every new law.

The first strikes me as just silly grandstanding, and I'm not sure whether the second will be of any use.

On the other hand, I might not be quite fair about reading the Constitution out loud-- I tend to space out during long recitations but not everyone does, and I should hope Congress members will have more knowledge of constitutional matters so that it will be easier for them to focus.

Still, it doesn't seem like a great use of their time, though I can imagine that some of them might have a "Hey! I didn't remember that was in there!" reaction, especially on details which haven't gotten a lot of partisan attention.

inquisitiveravn suggested that congress members should have to pass a quiz on the constitution before taking their oath. This might be useful, and it occurs to me that even if the creation of the quiz is somewhat partisan, knowing the other sides' interpretations is worthwhile. The quiz should be made public at some point so that it can be checked for accuracy.

My notion (and this might already exist) is an advisory organization (committee? civil service?) which vets laws for constitutionality before they're voted on.

Actually, it doesn't seem to me that lack of a grasp of the constitution is much of what's wrong with congress. Opinions?

Comments

[redbird]

It won't be a very lengthy recitation, even including all the amendments; the overwhelming majority of what's relevant isn't in that text, it's in two centuries of court decisions, and sometimes in treaties. Which, as the constitution may remind Congress, are also the law of the land.

I am also inclined to agree that it won't do any good. President Obama used to teach constitutional law, and is nonetheless backing/pushing for things that are blatantly unconstitutional as well as immoral, some of which he identified as such when he was a senator.

[onyxlynx]

I would agree with you if not for the fact that ('scuse me a moment while I whip out the citation)(well, the blog has archives, but they're choosing not to be accessible this morning) at least one senior legislator has attempted in the wake of the Wikileaks uproar to suggest an ex post facto law. Quite a few Representatives don't seem to understand the 14th Amendment. (Misunderstandings about the 2nd Amendment are, er, longstanding.)

If nothing else, reading the Constitution aloud should cause both Steve King and Michelle Bachmann to (figuratively) explode.

(I am otherwise agreeing with redbird here.)

[nancylebov]

Was there any evidence before the election that Obama would be so willing to ignore the constitution?

[sinboy]

It should be noted that the Tea Party also wants to repeal the 17th Amendment, and pass a constitutional amendment allowing states to basically ignore federal rulings through a simple majority vote. Its not like they love the entire constitution, just the parts they agree with.

[adrian_turtle]

I don't think there was any evidence in his Senate career or his campaign that he was THIS willing to ignore the constitution. He did vote to extend the Patriot Act (but so did nearly everybody in the Senate...and he had argued for making it a little less bad, which is more than most of them did.) I think this sort of statement was typical:
http://en.wikisource.org/wiki/Floor_Statement_of_Senator_Barack_Obama_on_the_Military_Tribunal_Bill
Outside the context of modern US politics, a person could read it as a sign that the speaker only believed in protecting the rights of the *wrongly* accused, that the right of habeus corpus should not apply to evildoers. (Or perhaps that it should not apply in times of crisis.) But *in* the context of modern US politics, it looks like a strategy for arguing with people like Robert Byrd. He's pushing for limits on government power, leaning on utilitarian arguments as well as constitutional ones.

[sethg]

Grandstanding, no question about it.

Any Member of Congress who believes that a proposed law is unconstitutional is free to argue that point while the law is under debate, and then vote against it. Anyone who believes that a proposed law is constitutional should have no trouble find a reason to justify it.

If they were requiring the Judiciary Committee to review every law and issue a report on its constitutionality, I would take the idea a little more seriously.

[whswhs.livejournal.com]

The current lawsuits over health care mandates turn in important part on what specific constitutional clause authorizes Congress to establish them. Are they justified by the interstate commerce clause? By the "necessary and proper" clause? By the taxing power? Different arguments arise in each case, on both sides. And the courts are more or less left to guess which constitutional clause to bring to bear; to say, for example, "Congress didn't describe this as a tax when they wrote the law."

The proposals I've seen are to require each bill to include a citation of specific clauses that supports its constitutionality. That would make debate over whether it was constitutional a lot more focused; not "can we imagine a theory under which this act might have constitutional justification?" but "what theory did Congress say they were relying on?"

[michael vassar (from livejournal.com)]

Now if they were to read the Federalist Papers... Hell, if they were required to be literate enough that they *could* read the Federalist Papers. That's a disturbing thought, but most members of Congress clearly aren't.

[xiphias.livejournal.com]

Seems harmless, which is at least better than a lot of stuff.

Might even be useful. Might even start pointing out to people that the Constitution isn't actually as limiting on the range of governmental action as people think.

[sethg]

If Congress was incorrect when it said that a certain law was constitutional under clause X, but the courts are convinced that it is still constitutional under clause Y, I don’t see why the courts would be obliged to strike down the law.

[avram]

My notion (and this might already exist) is an advisory organization (committee? civil service?) which vets laws for constitutionality before they're voted on.

If this committee were to have the power from keeping Congress from voting on laws of which it didn't approve, then the committee itself would need something like a constitutional amendment in order to be created, since nothing in the Constitution grants anyone outside Congress the power to keep Congress from passing laws.

Also, y'know that health care bill that the Republicans and Tea Party are so incensed about? It actually does cite the part of the Constitution that grants it authority. Didn't stop them from getting all angry about it.

[avram]

To go a step farther, there's nothing in the Constitution that explicitly grants the Supreme Court the power to strike down laws at all. An argument can be made, based upon the actual wording of the Constitution, that if judicial review is to be part of the process at all, it should be exercised by, say, the state legislatures, or a direct popular vote, under the Tenth Amendment.

Realistically, that ship left port in 1803, but as long as we're revisiting the idea of just exactly what the Constitution says and doesn't say, that there is one of the things that the Constitution doesn't say.

[heron61.livejournal.com]

I've come to seriously distrust any politician who talks about the Constitution at any length, because that generally means they are strongly in favor of "states rights", which in all cases means they dislike social services & environmental protection laws and (especially) don't want the federal government restricting the rights of states to be bigoted and misogynist.

Actually, it doesn't seem to me that lack of a grasp of the constitution is much of what's wrong with congress. Opinions?

Absolutely - at this point the two most serious problems seem fairly clear - neither party is willing to work with the other, and the Republican party is largely controlled by its lunatic bigot fringe.

[nancylebov.livejournal.com]

Were there any politicians who were opposed to GWBush for trying to get powers for the President beyond what were given in the constitution?

I say "trying to get" because I'm not sure how much he actually changed.

[osewalrus.livejournal.com]

I like to think you do the advance reading before showing up to work.

I could wish a reading of the Preamble would stir members to work together "in order to form a more perfect union."

Laws are reviewed for Constitutionality before being brought to the floor. I believe in the House it is by the Office of Legislative Counsel, but don't hold me to that.

Part of the problem here is that when most people say something is "unconstitutional," they mean they don't like it. The vast majority of what Congress does falls well within the established ambit of Constitutional powers as previously interpreted by the Supreme Court. This does not prevent serious dispute in some cases. Unsurprisingly, it is the 1% of cases that are controversial that get most of the attention.

[osewalrus.livejournal.com]

My recollection of the current process (and I may be wrong here) is that there is a permanent Office of Legislative Counsel that is non-partisan (like the Congressional Budget Office) whose purpose is to put bills into suitable legislative language and to check for possible constitutional issues. These issues (if they exist) are flagged in the report back to the member before the bill is submitted.

[sethg]

I saw an essay—I think it was from one of the Volokhs—arguing against this interpretation. The gist of it was that since the Constitution describes itself as the supreme law of the land and describes the Supreme Court as the head of the “judicial Power”, then part of the judicial system’s job must be to decide which laws are void for being inconsistent with the constitution (just as a court has the authority to void a private contract that is inconsistent with statutes).

[nancylebov.livejournal.com]

I didn't quite get around to writing that constitutionality isn't a simple objective fact or completely arbitrary.

[avram]

Judicial activist!

[avram]

But that's a part of Congress itself, right?

[avram]

I strongly suspect that it's not logically possible for any document like the US Constitution -- something which defines a legal environment in an open-ended fashion that allows later amendment -- to perfectly define the condition of constitutionality, much less a procedure for insuring that condition.

[whswhs.livejournal.com]

Each of those clauses specifies a purpose that Congress is allowed to pursue, and means that it's allowed to use to do so. If a law does not in fact serve its stated purpose, or pursue it by improper means, or pursues a purpose that Congress is not authorized to pursue in the first place, making it invalid, why on earth would you suppose that it would turn out to be an effective and proper means of pursuing some completely different authorized purpose? Or do you think that they should just get to pass any laws they like, in a kind of political scattershot, and if they happen to hit anything, that should be declared to be the intended target, as if Congress were a cat that had fallen into the bathtub and was now saying, "I meant to do that"?

You sound for all the world as if you wanted it to be easier for Congress to pass laws, rather than harder.

[whswhs.livejournal.com]

Federalist 80 makes it quite clear that Hamilton, as one of the authors of the Constitution, explicitly intended it to have that authority, and read that grant of judicial authority as including "all cases in law and equity, ARISING UNDER THE CONSTITUTION and THE LAWS OF THE UNITED STATES." In 81 he goes on to say that "the Constitution ought to be the standard of construction for the laws, and . . . wherever there is an evident opposition, the laws ought to give place to the Constitution." I find it hard to imagine as activism the interpretation of the Constitution as meaning what one of its authors said it means.