At the initiative of House Republicans, the House recently changed its rules to allow the reading of the whole Constitution on the floor on the House’s opening day and to require each bill introduced in the House to be accompanied by a statement in the Congressional Record “citing as specifically as practicable the power or powers granted to Congress in the Constitution to enact the bill or joint resolution.” Some are hailing both moves as a major change which will help keep Congress within the bounds the Framers originally intended. Others see it as cheap public relations, a sop to tea-partiers that will give the new Republican majority the cover to get back to congressional business as usual.
I wonder if both sides might be wrong. Might the focus on constitutional authority, particularly the second measure, work to popularize constitutionalism in the way some, like Larry Kramer of Stanford, have argued it was always meant to be. If so, one might wonder whether the Republicans should be careful what they wish for.
I see three pressures potentially at work here. First, forcing Congress to address the issue of constitutional authority, which it often purposefully leaves to the courts, may lead people to think about constitutionalism differently. For one thing, they’ll have to wrestle with what the Constitution means in a much wider and diverse set of circumstances than they do now. For most people, I think, constitutional theory appears not to matter much beyond the set of high-profile issues that power popular politics at a particular time, like abortion, health care reform, and same-sex marriage seem to now.
The required statement of constitutional authority might, in a sense, work to normalize constitutional thinking by forcing it to be brought to bear and argued over in every piece of legislation. If people come to see an interpretive commitment they make in one area restricting the political choices available to them in another, they might think differently about it. How will someone who dislikes both health care reform’s individual mandate and illicit drug use view Congress’s power under the Commerce Clause? While it is possible to argue that the Commerce Clause does not allow Congress to penalize people who don’t purchase insurance but allows it to criminalize the possession of drugs produced and sold within a single state, which the state itself might even allow the use of, it isn’t easy. These sorts of tensions may cause people to have a less philosophical (read “ideological”) and more results-oriented view of constitutional interpretation. That’s hardly a result one suspects the changes’ proponents intend.
Second, if the subject of constitutional authorization is forced routinely on the table, surely others will quickly put constitutional prohibitions there too. In other words, if politicians must make arguments why some part of the Constitution grants Congress the power to do something, why won’t others introduce into the Congressional Record statements indicating why other parts, like the First or Fourteenth Amendments, bar it. After all, it’s not that hard to put something into the Congressional Record. If the proponents hope that forcing discussion of constitutional authorizations will reinvigorate thinking about the Commerce and Necessary and Proper Clauses, wouldn’t encouraging discussion of constitutional prohibitions similarly reinvigorate the Constitution’s prohibitory provisions? If so, that would have a quite different spin. Except in a few areas, like Takings and Second Amendment law, the prohibitory provisions have a largely liberal cast.
Third, might requiring constitutional authorization statements further subordinate constitutionalism to politics? Take the example of the increasing federalization of criminal law, decried by some conservatives, like former Chief Justice Rehnquist, and liberals alike. Carjacking, so far as I know, is largely a “local” crime. Congress criminalized it, like many other things, not because it represented a national problem that states could not effectively handle but because criminalizing it furthered the interests of individual federal politicians. Carjackers form a very small political constituency, while those fearing crime and wanting to “get tough” on it vote in large numbers. Making carjacking a federal crime thus let federal politicians take credit with many voters for being tough while alienating very few. But many think that making carjacking a federal crime is unnecessary or, worse yet, stupid.
What effect would requiring a statement as to why the Constitution authorizes carjacking legislation have? It could, of course, lead the proponents to have second thoughts. That wouldn’t be a bad outcome. It could also, however, lead those behind the measure to argue that the Commerce Clause authorizes Congress under one theory or another to regulate local crimes. It all depends on whether you think people in Congress are more concerned about constitutional theory or reelection. ‘Nuff said.
This type of political pressure seems, moreover, to work in only one direction—ratcheting up Congress’s power to regulate traditional local activity. If reelection votes are to be reaped by taking positions that require expanding Congress’s power, constitutional authorization statements will push ever further in that direction. Not only will political incentives lead Congress to adopt expansive theories but it will be doing so in contexts where the people want it to take action. Far from reining in an errant institution, in other words, the constitutional authorization statement could push Congress and voters to see how expansive powers are necessary for them to get what they want—reelection, on the one hand, and strong-seeming laws against crime, on the other. That’s probably not what House Republicans intended.