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October 3rd, 2010

The Pledge to the Constitution

By Nathan Tucker

Recently, Republicans released their Pledge to America in which they vowed “to dedicate ourselves to the task of reconnecting our highest aspirations to the permanent truths of our founding by keeping faith with the values our nation was founded on, the principles we stand for, and the priorities of our people.  This is our Pledge to America.”

Among the Pledge’s forty-eight pages are two pledges to the Constitution that have attracted quite a bit of flack from the liberal press.  On page three, Republicans:

Pledge to honor the Constitution as constructed by its framers and honor the original intent of those precepts that have been consistently ignored—particularly the Tenth Amendment, which grants that all powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

Later, on page eighteen, Republicans wrote that:

This lack of respect for the clear Constitutional limits and authorities has allowed Congress to create ineffective and costly programs that add to the massive deficit year after year.  We will require each bill moving through Congress to include a clause citing the specific constitutional authority upon which the bill is justified.

This pledge to a Constitution of limited, enumerated powers is foreign to a press dedicated to the progressive agenda of limitless government solutions to the problems of the world.  The liberal website Think Progress describes this Pledge to the Constitution as a “Radical ‘tenther’ [after the Tenth Amendment] view of the Constitution.”

Susan Milligan, writing in US News and World Report, argued that “[o]f all the promises in the GOP’s ‘Pledge to America,’ the most potentially troublesome is the demand that all legislation include a clause stating exactly how the proposed law is provided for in the U.S. Constitution.”

Having been indoctrinated that the courts are the infallible organs of an evolving constitution, Milligan continues:  “Congress has been known to try to undo a court decision the ruling party doesn’t like.  But this pledge goes a step further, usurping the very role of the judiciary in determining whether laws pass constitutional muster.

“The separation of powers is one of the most critical elements of our democracy, bringing checks and balances on the power of each branch.  The judicial branch can handle the constitutional questions.  The legislative branch should stick to legislating.”

Ben Adler, of Newsweek, writes in the same vein:  “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.”

Dahlia Lithwick, in the online newspaper Slate, wrote:  “O’Donnell explained that ‘when I go to Washington, D.C., the litmus test by which I cast my vote for every piece of legislation that comes across my desk will be whether or not it is constitutional.’  How weird is that, I thought.  Isn’t it a court’s job to determine whether or not something is, in fact, constitutional?  And isn’t that sort of provided for in, well, the Constitution?”

Such commentators are sadly uninformed of our nation’s history.  Constitutional debates, particularly over the relationship between the federal government and the states, dominated Congressional discourse up until FDR”s New Deal Era.  Even then, Roosevelt felt the need to write to Representative Samuel Hill in 1935 that “I hope your committee will not permit doubts as to the constitutionality, however reasonable, to block the suggested legislation.”

Not only have our elected officials debated the constitutionality of their proposed course of action, but we should want them to.  The courts may be the last line of defense against unconstitutional federal action, but Congress, in contemplating a bill, is the first and the President, with his veto power, is the second.

Even Dahlia Lithwick, in 2008, advocated for a constitutional conscience on the part of our elected officials when she wrote, “The great tragedy of the Bush administration was that it operated for years as though the Constitution was something nobody really cares about.”

This constitutional conscience is especially important in light of the fact that the courts, as currently staffed, are ill-equipped to review the constitutionality of every provision of every 2,000 page law or the millions of administrative and agency decisions made in the course of a year.

Nor does this impermissibly intrude on the power of the courts to review the constitutionality of legislation, for the courts have absolutely no role in the legislative process at all.  In fact, such a role was explicitly rejected by the Framers at the Constitutional Convention.  Judicial authority only extends to passed legislation, while debates over the constitutionality of proposed legislation is completely within the jurisdiction of the other two branches of government.

The Republican’s Pledge to the Constitution is not only a legitimate exercise of Congressional power, it is to be applauded as a long overdue step in the right direction.  The difficult task, however, lies in fulfilling it after the election when faced with the politician’s overpowering desire to use government power to solve his or her constituents’ every problem.

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About the Author

Nathan W. Tucker
Nathan W. Tucker is a Davenport attorney and author of We The People: The Only Cure to Judicial Activism. He can be contacted at [email protected]

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