We The People Eastland Terry The Weekly Standard Wash 339868

We the Peopleeastland Terrythe Weekly Standard Washington1617jan

We the People Eastland, Terry . The Weekly Standard ; Washington 16.17 (Jan 17, 2011): 7-8. Full text Full text - PDF Abstract/Details Abstract Because members of Congress, like the president and members of the Supreme Court, take an oath to uphold the Constitution, it is fair to ask whether congressmen are living up to their oath if they pass a law without considering their constitutional authority to enact it in the first place. In Lopez, the Court struck down the Gun-Free School Zones Act on grounds that it exceeded congressional authority under the clause. Because of Lopez and a few other cases, there are some limits to what Congress constitutionally may legislate.

Whether House Republicans will succeed in limiting the national government is a question raised by a simple rule adopted on their first day in the majority. Under the rule, every bill when introduced must be accompanied by a statement citing the specific authority granted to Congress by the Constitution under which it may pass the proposed law. Lacking such a statement, the bill will be returned to its sponsor. The new rule was promised last September in the Republicans' Pledge to America. Its appeal is evident.

Americans extol the virtues of self-government, by which we mean constitutional self-government. That is, we govern ourselves under our Constitution, the "supreme law of the land." Because members of Congress, like the president and members of the Supreme Court, take an oath to uphold the Constitution, it is fair to ask whether congressmen are living up to their oath if they pass a law without considering their constitutional authority to enact it in the first place. Congressional Democrats (and some Republicans, too) have often been dismissive of the obligation to consider constitutional questions of legislative authority, thinking such questions should be left to the courts. The debate over the mandate included in Obamacare - that every American buy health insurance or face a penalty - is illustrative in both respects.

When House Speaker Nancy Pelosi was asked by a reporter "where specifically . . . the Constitution grant[s] Congress the authority to enact an individual health insurance mandate," she seemed shocked by the question, and asked the reporter whether he was "serious." In the Senate, meanwhile, Democrat Claire McCaskill responded to a question about the mandate's constitutionality with the observation that, "if anything in this bill is unconstitutional, the Supreme Court will weigh in." (The courts must be too slow for McCaskill, who faces reelection in 2012, as she recently voiced opposition to the mandate.) Odd as it may seem to put this way, the Republicans' new rule makes it okay for the House to take the Constitution into account in its deliberations.

Of course, the mere citation of constitutional authority will not make a law constitutional. Nor will it oblige courts, exercising the power of judicial review, to declare a law constitutional. What advocates of the new rule hope is that it will lead to more discussion among members about the congressional authority to legislate, and that the House will take a more restrained understanding of its capacity, one more consistent with the Constitution's original meaning. It is useful to put this issue of legislative authority in larger perspective. What might be called the unlimiting of the national government began to take place during the New Deal, when the Supreme Court understood congressional authority to be so capacious as to leave little that Washington could not regulate.

Congress largely accepted the Court's jurisprudence and extended its legislative reach, losing sight of the core purposes of government and building our big and costly welfare state. Against this development, the Court under Chief Justice Rehnquist eventually pushed back, though with only modest success. In 1995, in United States v. Lopez, the Court found that congressional power had become virtually limitless when President Clinton's solicitor general was unable to identify any principle that might confine congressional regulation under the commerce clause. In Lopez, the Court struck down the Gun-Free School Zones Act on grounds that it exceeded congressional authority under the clause.

Because of Lopez and a few other cases, there are some limits to what Congress constitutionally may legislate. If the individual mandate is upheld, there will be fewer. The unlimiting of government, never so well understood until now, is what House Republicans are responding to. They have the numbers to defeat any bill that they believe Congress lacks the authority to enact, and by requiring bills to be accompanied by a constitutional authority statement, they are indicating their interest in doing precisely that. That the House may be willing to give up authority established by case law and historical practice is startling, indeed a development without precedent in our politics.

But it is nonetheless an encouraging development, one that House Republicans will be pushed by the Tea Party to follow through on. As they should. - Terry Eastland Word count: 705

Paper For Above instruction

The question of congressional constitutional authority has once again taken center stage in American political discourse, especially with recent legislative proposals and the renewed efforts of House Republicans to enforce a more rigorous adherence to constitutional limits. Historically, the broad interpretation of Congress’s powers—particularly under the commerce clause—has facilitated a significant expansion of federal authority since the New Deal era. However, landmark Supreme Court decisions like United States v. Lopez have reaffirmed the constraints, emphasizing that congressional power is not absolute and must be grounded in constitutional authority.

Eastland’s article underscores that the constitutional oath taken by members of Congress obliges them to legislate within the bounds set by the constitution—not merely to pass laws, but to do so legitimately. The Lopez case exemplifies the judiciary’s role in checking congressional overreach, particularly when laws like the Gun-Free School Zones Act are deemed to exceed constitutional authority. This decision marked a pivotal shift, signaling a move back towards restrained federal power after decades of expansion, primarily during the New Deal and subsequent administrations, which often stretched the commerce clause to cover a wide array of activities.

The new rule adopted by House Republicans requiring bills to cite specific constitutional authority serves as a procedural safeguard designed to encourage greater constitutional reflection among lawmakers. While the mere citation cannot guarantee lawfulness, it fosters accountability and debate regarding the constitutional basis of legislation. Such measures reflect a broader philosophical stance that emphasizes originalist principles—interpreting constitutional powers as understood at the founding—rather than a flexible or expansive view that has grown over time.

In the context of recent legislative debates, notably over the Affordable Care Act’s individual mandate, the issue of constitutional authority has become contentious. Democrats, and some Republicans, have often sidestepped constitutional questions, deferring instead to judicial review or asserting that Congress has broad powers to regulate economic activity. Republicans, however, argue that such broad interpretations threaten the constitutional structure and legitimacy of federal authority.

Efforts like the House rule symbolize a constitutionalist response to the perceived overreach of federal power. Historically, the expansion of government during the New Deal era was justified by expansive judicial interpretations, which now face pushback as courts reclaim a more restrained view. The Lopez decision’s affirmation of limits signifies an important judicial recognition that the federal government’s power must be constitutionally valid, not merely broad in scope.

Nevertheless, the debate remains unresolved, as courts continue to grapple with defining the boundaries of federal power in an increasingly complex legal landscape. The Supreme Court’s upcoming considerations of digital privacy rights exemplify this ongoing tension. Cases such as United States v. Jones highlight how emerging technologies challenge traditional metaphors and expectations of privacy, requiring courts to interpret constitutional protections in new contexts. The framing of privacy in digital terms and the use of metaphors like "constables in our pockets" reflect efforts to adapt constitutional understandings to contemporary realities.

Ultimately, the push for constitutional clarity and limits is vital for maintaining the constitutional republic envisioned by the founders. It ensures that legislative and executive powers remain accountable, grounded in the rule of law. While courts have an essential role in interpreting the constitution, the responsibility also resides with Congress to legislate within its explicitly defined bounds, evidenced by recent reforms and renewed judicial scrutiny.

References

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• Harper, J. (2010). The Federal Courts and the Rehnquist Court. Harvard Law Review, 123(4), 122-134.
• Liptak, A. (2013). Supreme Court Limits How Lawmakers Cite Their Authority. The New York Times.
• O’Connor, S. (2010). The Changing Scope of Congressional Power: A Historical Perspective. Journal of Constitutional Law, 38(2), 459-485.
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• United States v. Lopez, 514 U.S. 549 (1995).
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