Last week, Ben Adler of Newsweek wrote a piece about the GOP House Leadership’s Pledge to America. I have some reservations about it, as do others, but one of Adler’s complaints was about an aspect of the pledge that I really liked. On pg. 18 the pledge reads:
We will require each bill moving through Congress to include a clause citing the specific constitutional authority upon which the bill is justified.
Not so harmless, however, is the promise to require every bill to be certified as constitutional before it is voted on. We have a mechanism for assessing the constitutionality of legislation, which is the independent judiciary. An extraconstitutional attempt to limit the powers of Congress is dangerous even as a mere suggestion, and it constitutes an encroachment on the judiciary.
Congress considering the constitutionality of a law is dangerous? So I take it they are to leave their copies of the Constitution at home and check their brains at the door. Nowhere in the pledge does it take away the judiciary’s ability to arbitrate on the constitutionality of a particular law. Nowhere in the Constitution does it say that Congress can’t consider the constitutionality of a particular bill.
The Constitution already limits the powers of Congress in Article III, Section 8… the problem is they often don’t exercise restraint. Unfortunately our judiciary hasn’t been much help with decades of rulings on the Commerce Clause and General Welfare clause which have allowed the continued growth of government and diminished states’ rights. Let’s also not forget that our judiciary isn’t independent in that it is an institution of the federal government.
Anyway, I applaud the desire to exercise some self-restraint even if I’m skeptical they will actually do it.