Has the Constitution become a Farce?

“The Preamble to the Constitution has the following injunction …to  ensure domestic tranquility … This is the purpose of this bill,” Rep. Dennis Kucinich’s compliance statement per House Rule XII on the constitutionality of his bill to create a Department of Peace.

A return to constitutionality was supposed to be a hallmark of the 2010 election. Part of the GOP’s Pledge to America read, “We will require each bill moving through Congress to include a clause citing the specific constitutional authority upon which the bill is justified.” Republicans took over the House with considerable help from the Tea Party and other constitutional conservatives. How has Congress fared in delivering on its promise to comply with the Constitution?

Not well, according to a new report prepared by Constituting America. Janine Turner and Cathy Gillespi founded Constituting America to reach, educate, and inform Americans about the U.S. Constitution. They used an analysis by the Republican Study Committee, which had tallied the Constitutional Authority Statements for every bill and joint resolution that have been introduced this Congress. The Constituting America white paper shows that despite some good intentions, Congress has not made constitutional compliance foremost in proposing legislation.

Here is some background. On January 5, 2011, the House of Representatives amended House Rule XII by adding: “A bill or joint resolution may not be introduced unless the sponsor submitted for printing in the Congressional Record a statement citing as specifically as practicable the power or powers granted to Congress in the Constitution to enact the bill or joint resolution.” Unfortunately, if the Constitution cannot bind Congress, no rule will stand in their way of doing what they want.

House members submitted 3,865 bills in the first year under this revised rule. According to the Constituting America white paper, 660 of them referenced the opening sentence of Article I, Section 8, “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States,” as if the reference to general welfare in this clause overrode the enumerated powers in the remainder of the section.  The commerce clause was used to justify an additional 732 bills. Another 321 cited the necessary and proper clause. Additionally:

• 3 bills cite only the Preamble to the Constitution
• 109 bills cite only Article I, which creates the Legislative Branch
• 69 bills cite only Article I, Section 1, which grants all legislative powers to Congress
• 617 bills cite Article I, Section 8 without citing any specific clause.

These numbers mean that nearly 65% of the bills could not point to a specific enumerated power. The reports says, “even more regrettable, are the 109 bald citations to the entirety of Article I—the Article creating the legislative branch of the federal government—as if by sheer virtue of its own existence Congress may enact any law it pleases.  This tells the electorate something important about the current Congress—how some of its Members view the laws, the Constitution, and their own legal authority.”

The Constituting America publication includes four proposals to further strengthen Rule XII.

I have only one: Vote against any member of Congress that treats the rule or the Constitution lightly.