In last week’s post-Tucson rush to judgment, liberals blamed Jared Loughner’s alleged shooting spree on a “climate of hate” stoked by everything from Sarah Palin’s Facebook page to John Boehner’s tears. On Monday, Rep. James Clyburn, D-S.C., even implicated the House GOP’s decision to open the new session by reading the Constitution aloud.
Things have calmed down recently, thanks in part to President Barack Obama’s sensible speech Wednesday. So I hope even Clyburn will not think I am trying to send coded messages to psychopaths if I address the Constitution’s role in the 112th Congress. After all, it is an important issue.
House Republicans say they want to restore our national charter. And on Jan. 5, the GOP passed changes to the House rules. First item? No bill can be introduced without a statement citing “as specifically as practicable” Congress’ constitutional powers to enact it.
The old scroll is receiving a lot of respect lately from Boehner’s GOP. That is great, but do not jump for joy just yet. It will take more than symbolic gestures to restore constitutional government.
Requiring Congress to cite specific authority will not work if Congress follows the old pattern of treating the Commerce clause as a bottomless font of federal power.
In 1995’s U.S. v. Lopez, for example, for the first time since the New Deal, the Supreme Court struck down a federal law for exceeding the commerce power — in part because when Congress passed the Gun Free School Zones Act it could not be bothered to cite that catchall clause, or anything else.
Easily fixed: In 1996, Congress re-enacted the law, requiring that all prosecutions involve guns that traveled in interstate commerce. That covers virtually all guns, but it ignores the 10th Amendment, which holds that “the powers not delegated to the United States by the Constitution ... are reserved to the states.”
Boehner’s new rule changes little, because since 1997 the House rules have already required a constitutional citation for every bill that leaves committee. Obamacare leaped that speed bump with a perfunctory reference to — surprise! — the Commerce Clause.
The “radical” class of 1994 had its own constitutional caucus. Founded by Rep. J.D. Hayworth, R-Ariz., it aimed to “restore limited constitutional government.”
Not long after its founding, the caucus voted en masse for the Church Arson Prevention Act, passed unanimously in response to media-driven hysteria over a supposed “epidemic” of Southern church burnings. That “epidemic” turned out to be a hoax. Even if it had not, I am reliably informed that torching churches is pretty much illegal in all 50 states.
Two weeks ago, NBC’s Brian Williams asked Boehner to “name a program right now that we could do without.”
Boehner’s response? “I don’t think I have one off the top of my head.”
If Boehner cannot imagine any unnecessary, unconstitutional federal programs, why on Earth does he think it is important to insist that his colleagues review the Constitution before they legislate?
It is nice that House Republicans think the Constitution is “cool” again. But if history is any guide, they will need some outside pressure to make this more than a passing phase.
Examiner columnist Gene Healy is the author of “The Cult of the Presidency.”