TAR HEEL VIEW: To honor Constitution, Congress should raise bar for legal footnotes


Congress could do more than pay lip service to the U.S. Constitution on the 230th anniversary of its signing this Sunday.

If they’re serious about honoring the ultimate source of federal, state and local laws, legislators could expand a well-intentioned but ineffectual 2010 rule that required bill sponsors to cite each piece of new legislation’s specific constitutional authority.

The practice of justifying each bill by noting the amendment that authorizes it began in 2010 as a plank of U.S. House Republicans’ Pledge to America platform.

“For too long, Congress has ignored the proper limits imposed by the Constitution on the federal government,” the pledge states. “Further, it has too often drafted unclear and muddled laws, leaving to an unelected judiciary the power to interpret what the law means and by what authority the law stands.”

Republicans kept their promise — well, sort of.

You won’t find the constitutional citations in working drafts of an actual bill or in the resulting law. Instead, they are published in the Congressional Record.

Justifications accompany each bill submitted to the House clerk. The clerk doesn’t scrutinize the citations or reject them if they fail to pass the smell test.

We suppose lawmakers could disregard the spirit of the rule and plead the Fifth — that is, cite their Fifth Amendment right to avoid self-incrimination— on every bill. That’s a constitutional citation, right?

Editors at PolitiFact said the GOP has stuck to its pledge, but notes that “experts in congressional procedure say the impact is only symbolic.”

PolitiFact gave the pledge a truthfulness rating of “Promise Kept” — with a caveat.

“If you had a category for Promise Kept But Utterly Trivial, it would fit,” Duke University political scientist David W. Rohde told the fact-checkers.

Republican leaders in both houses of Congress could raise the bar by requiring constitutional justification statements to be included in the text of each bill and setting preliminary hearings in rules or judiciary committees to ensure the citations pass muster.

Bad bills would still make it onto the floor, to the president’s desk and even to the lawbooks. We’re not so naive to think Congress is capable of policing itself and essentially taking on the judicial branch’s role. Most days, the legislative branch has enough trouble doing its own job.

A constitutional litmus test would function as a loose strainer, not a failsafe filter. It may not prevent all federal overreach, but it could be used to kill some of the most egregious bills. The additional hearings would also slow the creeping growth of the statute books.

We have so many federal laws that the Library of Congress says it’s “nearly impossible” to count them. The United States Code swells for 53 bulging volumes. If the government can’t even quantify its many statutes, codicils and codes, how can a citizen ever be confident his conduct is lawful?

“The more corrupt the state,” first-century Roman senator Tacitus wrote, “the more numerous the laws.”

This Constitution Day, we challenge congressional Republicans and Democrats alike to go beyond symbolic loyalty to yellowed parchment. Make a commitment to constitutional governance.

The Wilson Times

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