Thursday, January 06, 2011

Height of Presumption

The new Republican majority in the House of Representatives has announced that one of its first orders of business will be to read the Constitution of the United States on the floor of that chamber. I don't have a problem with that. I think the Constitution is one of the grandest documents ever devised by the mind of man. I think it probably should get aired out every now and again. I personally am exceptionally fond of the Section of Article I that prohibits the States from laying Duties on the Import or Export of Tonnage.

But that's just me.

Now one might think that this is just a political stunt to keep the Tea Party loons revved up without really making a serious effort to, say, eliminate the Federal Reserve, but I'm willing to give the Rs the benefit of the doubt. So let us turn our attention to the political stunt.

When they actually get around to filing Bills, the Member introducing his or her Bill will explain under what provision of the Constitution the Bill is authorized under. This is actually pretty clever. It implies that the previous Majority introduced legislation without regard to the Constitution. It also imbues the new legislation with the patina of sanctity. At least for their target audience that has but a Christine O'Donnell level understanding of both the Constitution and the legislative process.

"Let's see those liberal Democrat bastards vote against Ron Paul's Bill to return to the gold standard. It's Constitutional ! "

As I like to say at times like these, here now is a teachable moment. Guess what? The first rule of statutory interpretation by a Court is this: A law passed by Congress is entitled to the presumption that it is Constitutional. This is without regard to which party introduces it, whether it is the product of bi-partisan cooperation or if it is rammed down the throat of the Minority by the Majority. And this is true is without regard to whether the law was sanctified by a citation to the Constitution when introduced. Or the United Methodist Book of Discipline for all that it matters.

Which is a big reason why laws passed by Congress are rarely overturned by the Federal Courts. State laws get overturned on Constitutional grounds with far more frequency than Federal laws. Another reason for this is that once a Bill is introduced in the House it is referred to the appropriate House Committee with its armada of lawyers for hearings and debate. Any initial questions about Constitutionality can get hashed out here. For a better discussion of this process you may click on the jump:

I gotta hand it to the rascals. This is pretty clever as theatre. But it has absolutely nothing to do with the Constitution.

And having said that, I think I will turn now to the section in the Constitution on Letters of Marque and Reprisal. I like that part too.

1 comment:

Polycarp said...

When they got to the part where the Constitution specifies that the President must be born in the United States, an informed citizen in the gallery shouted out "Except for Obama!"

She was promptly arrested.

I'm wondering what the Tea Partiers are going to make of the fact that the Constitution doesn't allow Congress to fund an army for more than two years running. Has that ever been enforced?