In taking simultaneous command of both the Senate and the House for
the first time in forty years, Republicans in November 1994 won a mandate
for reductions in taxes and spending, an end to federal regulations that
threaten life, liberty, and property, and the placing of most governmental
functions at the level nearest the people—the states and localities. That
election, and the retention of a Republican Congress in the 1996 elections,
was a call for a return to what the Founding Fathers called "constitutional
government." Yet, owing to long neglect and disuse, many Americans have
lost familiarity with what the very concept of constitutionalism entails.
The Framers were acutely sensitive to the fears of many that a new federal
government would erode the independence and authority of the states and
the people. To protect against that possibility, they stipulated that the
federal government would have only a short list of powers that were explicitly
enumerated in the Constitution. "The powers delegated by the proposed Constitution
to the federal government are few and defined," Madison explains in Federalist
No.
45. "Those which are to remain in the State governments are numerous and
indefinite." Since federal jurisdiction extends "to certain enumerated
objects only," Madison stresses in Federalist No. 39, the Constitution
"leaves to the several States a residuary and inviolable sovereignty over
all other objects."
The Constitution grants to the federal government all powers "necessary
and proper" for executing its enumerated functions, but no authority whatever
to rule on matters not explicitly delegated. The state and local governments,
Madison explains, "are no more subject, within their respective spheres,
to the general authority, than the general authority is subject to them,
within its own sphere." To underscore the broad-reaching residual sovereignty
of the states, the Framers incorporated it in the Bill of Rights by reiterating
in the 10th Amendment: "The powers not delegated to the United States by
the Constitution . . . are reserved to the states respectively, or to the
people."
Having seen the British Parliament, which had begun as a means of checking
the power of the monarchy, gradually expand its jurisdiction until its
own power was virtually unlimited, the Framers built into the U.S. Constitution
a variety of institutional checks and balances to help prevent Congress
from usurping powers reserved to the states. At the federal level these
include the presidential veto and the Supreme Court’s responsibility for
impartially resolving controversies "relating to the boundaries between
the two [federal and state] jurisdictions." The Constitution also provided
checks against an overweening Congress at the state level, including (until
overturned by the 17th Amendment) the direct election of senators by the
state legislatures. The Framers were explicit, moreover, that, in extreme
cases, the states were to resist despotic federal power by force of arms
if necessary. The state legislatures, writes Hamilton in Federalist
No.
26, "will always be . . . suspicious guardians of the rights of the citizens
against encroachments from the federal government . . . and will be ready
enough, if anything improper appears, to sound the alarm to the people,
and not only to be the VOICE, but, if necessary, the ARM of their discontent."
With this potential role in mind, Hamilton notes that the appointment of
militia officers by the states "will always secure to them a preponderating
influence over the militia" (Federalist
No. 29), which in turn would
allow them "to take measures for their own defense [against a tyrannical
federal government], with all the celerity, regularity, and system of independent
nations." (Federalist
No. 28)
Yet, despite such institutional checks and balances, the federal government
has ranged far beyond its legitimate authority and has precipitated an
emerging constitutional crisis. The problem is that, vis-à-vis Congress,
such institutional checks are external only and depend for their efficacy
on countervailing force being exerted from without. But, alone, such external
political checks can no more force Congress to respect constitutional limits
than mere legal sanctions against murder, rape, or robbery—unsupported
by internal religious and moral restraints—can produce an honest or peaceful
society.
Congress Needs an ‘Inner Check’
Needed in both instances is what Irving Babbitt termed the "inner check"
of genuine morality: the obligation, before putting envisioned acts into
practice, to weigh them against a higher standard. The Framers recognized,
in line with the long Judaeo-Christian tradition of the West, that men
and women are torn between opposing inclinations toward good and evil.
Because human nature is dualistic, both exterior and interior controls
are needed not only on the governed but—even more importantly—on those
entrusted with the power to govern others. As Madison observed in Federalist
No.
51, "If angels were to govern men, neither external nor internal controls
on government would be necessary. In framing a government that is to be
administered by men over men, the great difficulty lies in this: you must
first enable the government to control the governed; and in the next place
oblige it to control itself."
Because government is peopled with flawed human beings, the Framers
provided external checks and balances, up to and including—in extremis—the
right of the states to rebel against federal tyranny. But these external
checks are meant to strengthen, not replace, the obligation of federal
lawmakers to bind themselves by the "chains of the Constitution." To the
degree that this constitutional morality is weakened or ignored—as it has
been more often than not for many years—the Constitution becomes not a
living force but a scrap of parchment; and freedom is diminished.
The Republicans gained majority control of both houses of Congress in
1994 on the strength of their solemn pledge to restrain the heavy hand
of the federal leviathan. Even President Bill Clinton, who came to Washington
as a Democratic liberal, has declared that "the era of big government is
over." To assure that these pledges are more than empty rhetoric,, Congress
must breathe new life into the Constitution by making its restrictions
once again an integral component of the legislative process. Change of
this magnitude cannot be achieved piecemeal; it will require deliberate,
systematic—and sustained—action.
To provide strength and staying power, Congress should institutionalize
the new constitutionalism by creating in each chamber a Committee on Enumerated
Powers. For these panels to work effectively, they should be granted jurisdiction
to consider all bills before they are sent to the full House or Senate,
much as the House Rules Committee now enjoys. The mandate of the new committees
would be simple but important: to determine, and to specify in writing,
whether a legislative measure is authorized by one or more of the enumerated
powers of the federal government. Like other committees, those on enumerated
powers would act by majority vote. But, in accordance with the spirit of
constitutional restraint, it would be the responsibility of each member
to rule according to the letter of the Constitution and to justify his
or her affirmative votes by specific reference to that document.
In keeping with the intent of the Framers, the burden of proof ought
always to be on those who want to expand federal power. Normally, therefore,
a vote by the committee that a bill does not pass constitutional muster
should be sufficient to prevent its going to the floor. The rules might
provide for an exception, to be used sparingly, that allows bills not favorably
reported by the Committee on Enumerated Powers to be debated on the floor
of the full House or Senate. However, in such instances, passage should
require a supermajority—perhaps a two-thirds—vote. Moreover, before their
affirmative votes are counted, each lawmaker should be required to cite—in
writing for the permanent record—the specific article(s) and section(s)
that authorize those federal actions specified in the bill.
To assist committee members with the profound constitutional responsibilities
that would be theirs, staff members well-steeped in knowledge of constitutional
law, theory, and history should be engaged to catalog and chart all of
the Constitution’s enumerated powers by article and section. Secondary
materials such as the Federalist papers, records of the constitutional
and ratifying conventions, congressional debate on amendments, etc., might
also be catalogued, but only for the purpose of illuminating the explicit
clauses of the Constitution itself. The Framers were insistent that the
letter of the Constitution must be followed in all cases and that "construction"—i.e.,
changing the meaning of the Constitution over time through elaborate interpretative
schemes—would destroy its purpose. Fortunately, the adherence to the constitutional
text mandated by the Framers should minimize the need for staff even at
the outset, and that need will diminish even further after the initial
cataloguing is completed, probably during the first few years. Though the
administrative cost of such committees would be small, the good to be served
would be enormous. First, they would make the Constitution institutionally
effective by bringing its provisions to bear on every piece of legislation
considered by the U.S. Congress. Not only committee members but each and
every representative and senator would be forced, before proposing legislation,
to consider seriously the limits placed on the federal government by the
Constitution. In addition, these committees would serve a priceless educational
and civic function. House Speaker Newt Gingrich has asked his colleagues
to read the Federalist papers, but what better way to rejuvenate
interest in those papers and the document they elucidate than for Congress
to prove by its actions that the Constitution again matters? Similarly,
it is a national disgrace that America’s schoolchildren have been taught
next to nothing about the Constitution and its history. But the schools
will be compelled to remedy this deficiency, once it becomes obvious that
the national charter, far from being a merely ceremonial document or a
historical curiosity, again serves as the bedrock of our national polity.
Perhaps most importantly, Congress—by taking seriously its legal and
ethical responsibilites to adhere to the Constitution as written, not as
each member would like it to be—would set an invaluable example for the
Supreme Court. When measured against Congress' new standard of constitutional
restraint, Supreme Court justices—and courts in general—would find it harder
to put forth their arbitrary personal desires in the guise of constitutional
interpretation.
A Republic, If We Can Restore It
In short, by focusing serious nationwide attention on the literal requirements
of the Constitution—attention that has been absent for more than a century—the
committees on Enumerated Powers would bid fair to make the United States
again what Americans now pretend it is each Fourth of July—a constitutional
Republic. Given the unruliness of human nature, self-imposed limitations
such as these committees would enforce are not easily institutionalized
in Congress or anywhere else. But this may be one of those rare historical
moments when it can be accomplished. For the first time in years, states’
rights are politically in right now, as evidenced by the rebellions
against unwarranted federal interference now being waged by many state
governors and legislatures. Still more evidence: the liberal Washington
Post
recently published an editorial in favor of the 10th Amendment! Before
constitutionalism can exist in fact and not just in name, Congress, the
states, and the American public must regain the habit of thinking of the
Constitution as having a direct, practical bearing on their day-to-day
actions. Committees on Enumerated Powers would institutionalize this requirement.
To be real, a Constitution must be lived, not honored in the breach.
For without constitutional morality, there is no Constitution. And down
that road, much hard experience already has taught us, lies tyranny.
*Mr. Baldacchino is president of the
National Humanities Institute.[Return]