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Ezra Klein wonders what good a Constitutional cite will do on future legislation

Ezra Klein got himself in a bit of hot water by saying some things about the Constitution that appear to have been misinterpreted.  He originally commented on the subject while talking about the new GOP rule that requires a Constitutional reference be put on every bit of legislation offered to, one assumes, prove it’s Constitutional viability.  Unfortunately, it isn’t Congress which gets to decide what is or isn’t Constitutional.

The old saying, “the Constitution says what the Supreme Court says it says” is never more true than it is today.  In fact, “interpreting” the Constitution is the SCOTUS’s primary job.

Klein actually uses an example in ObamacCare to make his point about the GOP’s new requirement:

"The individual responsibility requirement provided for in this section (in this subsection referred to as the requirement) is commercial and economic in nature, and substantially affects interstate commerce," reads the opening paragraph. Shortly thereafter, the legislation makes itself more explicit: "In United States v. South-Eastern Underwriters Association (322 U.S. 533 (1944)), the Supreme Court of the United States ruled that insurance is interstate commerce subject to Federal regulation."

Now you may disagree with the argument, but you can’t disagree with the point.  And you should note that while it cites the constitutional provision generally (commerce clause), it specifically cites a Supreme Court case as another cite.

Klein goes on to say that both sides have a tendency to interpret the Constitution to their benefit – which I would say is, for the most part true.  However, I’d also suggest that the difference between the two sides is the right has a tendency to interpret the Constitution as a limit on government – something the founders wrote it to be.  In my opinion then, the right therefore tends to be more in line with the original intent of the Constitution with its interpretations than is the left.  The left, in many cases, sees the Constitution as an impediment to broadening the powers of government far outside the seemingly clear powers granted the government by the Constitution.  I’d say they’ve been very successful in achieving their aim to this point.

Anyway, to make his point about both sides and their interpretations, Klein uses the 2nd Amendment as an example of the right’s interpretation of the Constitution to their benefit (i.e. unrestricted possession of firearms).  His claim that this is probably an incorrect interpretation since it relegates membership in a “well regulated militia” to meaninglessness.  Of course, a simple bit of research would have pointed out that the militia was defined quite specifically by any number of founders.  For instance, George Mason: “"Who are the militia? They consist now of the whole people, except a few public officers."  Mason’s definition was widely agreed to by the vast majority of the founders as anyone who has read them knows.  And, of course, Article 1, Section 8, speaks to the training of the militia (‘well regulated’) and leaves that to the states, not the federal government.

So it was obviously the intent of the drafters of the Constitution that all be given the right to bear arms and that all who did formed the “militia”.  And that conforms well with how militias have been viewed throughout our history.  That takes a bit of steam out of Klein’s argument that the right is just as bad as the left (I challenge him to come up with quotes by the founders that would support the broad interpretation of the commerce clause the left prefers).

However, given the SCOTUS’s role, his main point remains pretty much in tact – putting a Constitutional reference on a bill isn’t going to mean anything much, since the Congress doesn’t get to decide what is or isn’t Constitutional. 

That said, I certainly don’t see any harm in such a cite because lawmakers will at least have to address the Constitution and their interpretation of its meaning by providing a cite and defending it.  If nothing else it will spark needed debate as each member introducing legislation must defend that legislation Constitutionally.  Certainly, as the government is structured, they won’t have the last word if the law is challenged later in court, but it may at least be a mechanism that keeps what most members, left and right, would consider overtly unConstitional bills off the floor and provide a basis for bi-partisan rejection of those that do reach the floor.

So all in all, I see some advantage to the measure.  That advantage is limited to be sure, but it is a step in the right direction to return the focus of the national legislature toward the founding legal document of the land.  And while the SCOTUS will continue to be the final word on Constitutional legitimacy, perhaps fewer “ObamaCare” type bills will be a result of such internal discussion and debate.  I don’t know about you, but I would see that as a very welcome change.



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41 Responses to Ezra Klein wonders what good a Constitutional cite will do on future legislation

  • A long-time peeve if mine is that we don’t even think of the Constitution any more, most of us.
    Certainly not the Deemocrats, as evinced by their own vacant words of late.  This is a good thing, and I applaud it.

  • With rules like this, I can see the Congressional approval rating soring up to the lower 30’s!——CONEY

  • Klein is wrong. It isn’t just the court that interprets the Constitution. Congress and the POTUS do as well. In times past, the legislative and executive branches would self regulate with respect to this–consider Jefferson, who worried that the Luisiana Purchase was not constitutional (also consider the advice he followed to just do it and forget about the constitutionality, which is the modern practice).

    I don’t believe it was until we got to FDR that politicians basically forgot about the Constitution. The modern left has built a massive structure with an unconstitutional foundation. They simply have to view the Constitution as difficult to interpret because any simple, clear interpreation undermines everything they have built and want to build.

    He does have a point that there are areas at the margins where interpretation can be difficult. But we are not operating at this margins 98% of the time. For the vast majority of legislation the Constitution is clear.

    • I have always held that the PEOPLE were the ultimate arbiters of the Constitution.  We seldom exert that power, but we SHOULD.

    • I look at these new Constitutional justification statements to serve the same purpose as Presidential signing statements.
      Presidential signing statements allow all to see whatever interpretation the Executive branch will apply to the law. The Signing Statements impart no authority, but rather only represent a position of interpretation. Previously, these positions were understood within the Executive branch as internal policies that were unseen by the public and these positions were made public only when a statue was put up for judicial review or as regulations, stemming from these laws, were disclosed in the Federal Register. The Signing Statements represent a level of transparency by the Executive branch.
      If all bills had a Signing Statement, we would all be better served.
      The downside of a Signing Statement is that it removes the ability to flip-flop or in most cases even be flexible. It has the real effect of starting the judicial review process without even filing a suit, as it locks in many aspects of the Executive branch position. The opponents of any law should be waiting with baited breath to see what clarifications the Executive branch considers important enough to put into a Signing Statement, as this is the minimal test they will have to clear to have the court consider any reversals.
      Now we will have Congressional statements of intent.  No more of those ambiguous interpretations by the courts of the intent of Congress.  It will be spelled out up front.

  • I’ve decide to utilize my marginal bully pulpit in defense of what Ezra Klein was implying. He obviously was not clear enough, perhaps an analogy would do the trick :
    Ezra Klein In Cross-Hairs Of Right Wing Outrage

  • Actually, the most important reason for forcing Congress to cite the Constitution when rendering a bill is that it will narrow the arguments when defending the bill against a legal challenge.  Neo partially gets to this point above in mentioning “congressional intent”, but it’s much bigger than that.

    Take the challenge to the individual mandate, for example, where after passing the bill supposed with the authority vested in the commerce clause, the government tried to argue that it was actually a tax. If Congress is required to cite its authority each and every time, then these after-the-fact arguments won’t ever fly.

    Of course, that will probably lead to bill sponsors citing every potential power granted under the Constitution in order to cover their bases. I would imagine, however, that such references would generate constitutional arguments on the floor (imagine that!), and legislators would be forced to actually defend their legal positions. Not only would that raise awareness of the Constitutional issues in Congress and the electorate, it would create a heck of a legal trail when the courts are later asked to divine congressional intent (as Neo envisioned).

    Whether this scheme will work to rein in Congress and retard the expansion of government is still up to question. But it sure is a good start.

    • The problem is when good legislation gets struck down because of a bad cite.
      If this had real weight to it, this sword would cut both ways and adds complexity.  If it had no weight to it, it adds complexity.
      If anything this would give the established media an opportunity and motive to focus on specific aspects of the constitution miseducate the public about it.  The man on the street would have no doubt that the 2nd amendment referred to the right of the militias to bear arms.

  • Congress usually does cite constitutional provisions in more controversial bills, so I don’t see this doing anything.  It’s not a big deal either way.  (although it would’ve been interesting to see the GOP congress citing the interstate commerce clause in defense of its ban on partial birth abortion)

    Actually, the most important reason for forcing Congress to cite the Constitution when rendering a bill is that it will narrow the arguments when defending the bill against a legal challenge.

    It won’t do that.  The DOJ’s arguments won’t be limited to those provisions mentioned in the law.

  • I went and read Klein, he said something stupid or stupidly and is trying to wiggle out of it.
    I agree with the “intent” argument and it sure can’t hurt to have these yahoos at least trying to refer to the constitution.
    Apologies to any yahoos out there.

    • He said the constitution is vague and subject to multiple interpretation.  He was right.

      • Only to those who do not like what it clearly says.
        The Constitution is not a suicide pact it is a life raft.

      • I suppose that if Congress is allowed to make their own interpretations, that slavery in on the way back.
        Come to think of it the tax rates are making some of us slaves.

      • He said the constitution is vague and subject to multiple interpretation.  He was right.

        Not really. The left has come up with odd interpretations based upon the outcomes they want. The leftist constitutional interpretation amounts to starting with the desired answer and working backwards. The entirety of left wing interpretations since FDR was in office is nonsense devised in this manner.

  • The old saying, “the Constitution says what the Supreme Court says it says” is never more true than it is today.  In fact, “interpreting” the Constitution is the SCOTUS’s primary job.
    Actually I do not believe this.  Or I believe this was an oversight or flaw in the Constitution.  What your accepting will lead to an eventual board of Judge-Kings.  And considering there is a mechanism in the Constitution for the President and Congress to stack the deck, in theory with a little collusion, the Constitution is putty in the President’s and Congress’ hands.
    For example, if Obama and the Democrat Congress decided the normal pace of replacing Judges with Democrat Party operatives wasn’t happening fast enough (only 2 so far).  So Congress enlarges the SCOTUS by 10 seats and then adds 10 shameless party operatives?  What’s the recourse when their rulings disregard the obvious intent?  In practice, they would probably only need to expand the number of seats by 2-3 to tilt it to their near constant favor.

    • Still doesn’t change the fact that the final interpretation of what is or isn’t “Constitutional” rests with the court. Congress can go back and change the law to make it “Constitutional” but if a case is brought against the law and the SCOTUS decides to hear it, their ruling will be final (and note, that doesn’t mean all unconstitutional law will be ruled on by the court – a case must be brought against the law, it must wend its way through the federal court system and the SCOTUS must decide to hear it before it is “final”.).

      • And if that system is changed around to expedite the SCOTUS’s ability to rubber stamp the President’s and Congress’ legislation, who decides if those changes are Constitutional?  The SCOTUS, I’d assume.
        The question is who watches the watchers?   There is no check against a corrupted SCOTUS if we accept that the SCOTUS has the final word.

        • IF the system is changed obviously it has other implications – but we’re talking about today’s system, the one we deal with now, not some hypothetical system.

      • But this is done through a corruption of the words and intent of the Constitution not through interpretation. Oh, and sometimes just making things up—–Roe v Wade.

      • Still doesn’t change the fact that the final interpretation of what is or isn’t “Constitutional” rests with the court.

        Wow.  Really, really wrong.  See my comment above.
        The PEOPLE can CHANGE their Constitution…and they have.
        They CAN simply say “screw you”…and they have (see Prohibition).

        • … and Congress can change some of the definitions used by the courts

        • Of course they can – but the key word in my point is “interpretation”, one you skipped right over.

          • Um, no, Bruce.  If people didn’t have a different INTERPRETATION, they wouldn’t act to reverse the Court or Congress or whatever.
            Really…  You and I INTERPRET the Commerce Clause differently than did the Wickert court, right?  And you man I…with a whole lot of others…COULD direct that the court’s ruling be revolutionized.
            And, with decisions like Roe, the Court completely abandoned INTERPRETATION and began just making crap up and not caring much who knew it.
            Another instance of the Collective winning a reactionary battle against the Revolution without firing a shot.
            Time that was rectified, IMNHO.

          • And their “interpretation” then is open to review by SCOTUS as soon as their interpretation is challenged in court. Bottom line, the final say ends up with the Supreme Court, like it or not.

  • What young people “educated” in America’s public schools (such as Ezra Klein) do not understand is that the U.S. Constitution was (and still is) a simple, plain English document that turn government upside down.
    The Constitution intentionally limits the power and authority of the Federal Government.  It says,”These are the powers of the central government and there is nothing more they can do.”
    In the Bill of Rights, it specifically carves out the things which the people may do without state interference.
    The document provides for adaptation but makes it difficult.  It transcends law by forming the framework into which all laws must fit.  If there is a word to describe the Constitution,  the word is “brilliant.”

  • “The old saying, “the Constitution says what the Supreme Court says it says” is never more true than it is today.  In fact, “interpreting” the Constitution is the SCOTUS’s primary job.”
    That is true in general.
    However, since Article V of the Constitution grants the states the power to amend the Constitution WITHOUT the consent of the Federal Govt ( all Congress does is schedule the convention and decide how what comes out of it is ratified ) … yet REQUIRES the Federal Government to gain the consent of the States …
    And since the States can do this WITHOUT waiting for the USSC’s decision … or in direct contradiction of the USSC’s decision ( over-ruling it ) … the Constitution means what 38 States say it means.

    • Until it hits the court, and then the court can tell the states what they “really” meant.

      • Unless in the writing of the amendment the States remove the courts from jurisdiction … or worst case if the states disband the federal court system.
        See THAT is the point.
        The Constitution says what 38 states say it says … and if the Federal Government says it means something else then the 38 states can say the Federal Government no longer exists.
        Because Article V grants the states the power to disband the Federal government … without the Federal government’s consent.
        The Federal Government has no authority to disband a state ( You can only disband a state with an amendment — which of course must be approved by 38 states — one of which being that state ).

        • It takes 2/3rds to propose and 3/4ths to ratify. Don’t forget Congress can set a date for ratification, meaning it can be as long or as short as they so desire. Any guess on how quickly Congress would require ratification if such an amendment was proposed? Guess who made it clear they had that power? Yeah, the Supreme Court. So no, the 38 states may sound good on paper, but the mechanism has been screwed with enough over the years that it is unlikely they’d ever get their say unless the powers to be decide its a good thing.

  • ” … the Congress doesn’t get to decide what is or isn’t Constitutional. ”

    It doesn’t get to make a final decision in the case of disputes, but it is they’re only job: “To uphold and defend the Constitution of the United States of America …”

    As you say, few of them have honored that oath and most of them violate it daily, without a second thought. At least this change might motivate them to think about it.

  • Let’s see if the new Congress can do better than this …

    3) No Federal Budget — Big Media ignored the complete lack of responsibility by the Pelosi-Reid 111th Congress in fulfilling its basic constitutional duties. Not only did the Congress fail to pass a budget they barely made an effort to even adopt one, never passing a single one of the 13 necessary appropriations bills to fund government. Oh well, ho-hum!

  • I think the opposition on this comes from a theoretical like this:
    Let’s say lawX gets passed and the reasonA is the Constitutional grounds given.  ReasonA ends up getting used a lot to justify not only lawX but a good number of other laws too.  LawX gets challenged, it goes to the USSC, lawX is found to be unconstitutional and reasonA gets thrown under the Constitutional bus.  This will make a problem not only for lawX but for all those other laws that were justified by reasonA.

  • Test post . . . (couldn’t post earlier for some reason).

  • From a conservative perspective we shouldn’t look at the court as the final say on the constitution. Let’s say that McQ was POTUS, and Congress dropped a bill on his desk that was clearly unconstitutional (to McQ). POTUS McQ could veto on the basis it was unconstitutional, even if he otherwise liked the legislation. McQ doesn’t have to sign and wait for the SCOTUS to reject it . . .

    In the past, Congress and the POTUS considered constitutionality. That’s why, once upon a time, they felt a need for an amendment to ban alcohol. And that’s why they put the fig leaf of a “tax” in NFA ’34 (this fig leaf represents a government trying to come to grips with how to get around constitutional restraints).


  • Also, there is a higher constitutional authority than the Supremes. It rests with the American people, and what they want. FDR was able to bully the court into unconstitutional decisions, in large part because the American people, Congress, and everyone else stood by FDR. Now days, the conservative Supremes tip toe around these past bad decisions IMO, so as to not upset the applecart of bad government programs enabled by 60 years of bad decisions. A bullied court once ruled social security constitutional, and I don’t think a single conservative on the bench (with the possible exception of Thomas) would overturn that bad decision–not on any real constitutional basis, but because millions of Americans would be outraged.

    The simple fact is we have a huge unconstitutional government that was enabled by bad court decisions. Most Americans support key portions of this unconstitutional government. The left defends the unconstitutional government, and the right can only tip toe around the margins, attempting minor rollback. Many today are waking up to the unconstitutional nature of much of this, and the left does not want an honest assessment of the unconstitutionality of its past achievements.  

    Klein et al are simply trying to argue that constitutional interpretation is much toooo difficult for the rubes, and tea party types can’t understand the issue well enough to make sense of it. He’s arguing that the king does have clothes when everyone who looks sees otherwise. He’s using a technically correct argument that in fact there is some area where there is real room for a debate over interpretation, but in fact the majority of left/right splits in the court have an obvious correct answer based upon a simple clear reading of the Constitution.