About Me

In writing the "About Me" portion of this blog I thought about the purpose of the blog - namely, preventing the growth of Socialism & stopping the Death Of Democracy in the American Republic & returning her to the "liberty to abundance" stage of our history. One word descriptions of people's philosophies or purposes are quite often inadequate. I feel that I am "liberal" meaning that I am broad minded, independent, generous, hospitable, & magnanimous. Under these terms "liberal" is a perfectly good word that has been corrupted over the years to mean the person is a left-winger or as Mark Levin more accurately wrote in his book "Liberty & Tyranny" a "statist" - someone looking for government or state control of society. I am certainly not that & have dedicated the blog to fighting this. I believe that I find what I am when I consider whether or not I am a "conservative" & specifically when I ask what is it that I am trying to conserve? It is the libertarian principles that America was founded upon & originally followed. That is the Return To Excellence that this blog is named for & is all about.

Monday, January 10, 2011

Following The Oath To Support The Constitution Gives Us A New Start

Because of the murders in Tuscan on Saturday the House has cancelled all scheduled floor activities this week except for a resolution honoring Congresswoman Gabrielle Giffords & those slain in the shooting incident.

Even with this postponement of regular business out of respect for the fallen, including the vote on the bill to repeal ObamaCare, the new House leadership has already set the stage for tremendous meaningful change for our Republic with the reading of the U.S. Constitution as the first order of business last week. It is of paramount importance that each & every Member of Congress live up to & follow the Oath they take to support the Constitution - starting with this reading we have a chance they may return to this principle of our first Congresses.

In this regard the WSJ ran the best op-ed I have ever read on the subject today entitled The Constitution: Not Just for Courts (see below). This op-ed expands on the idea that it is the responsibility of everyone who takes the Oath to support the Constitution - not just the 9 regular human beings on the Supreme Court. Please don't fall for the propaganda that it is only the Supreme Court who can determine if something is constitutional or not. I repeat below my letter to the WSJ that was published last July in this regard.

BTW - combining the above mentioned killing incident in Arizona with the Constitution - in accordance with the 6th Amendment "the accused shall enjoy the right to a speedy & public trial." To Carol & me this trial cannot be speedy enough. Neither can the dispensation of the verdict.

---Letter Published In WSJ July 16, 2010---

Timothy Dreisbach is only partially correct when he writes on July 6 that "it is the responsibility of the Supreme Court to decide if they (laws) are constitutional." Every Member of Congress & the President & Vice President also take an oath to uphold the Constitution. Up until the Civil War virtually every President regularly vetoed legislation because they thought some bills were unconstitutional - mostly for violating the Spending Claus of Article I, Section 8. What a better Republic we would have today if our modern presidents followed this practice.

The Constitution: Not Just for Courts

'Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others.'—Andrew Jackson


The recent attempt by House Republicans to bring constitutional deliberation to Congress has been roundly mocked—by Democrats, law professors and pundits. "When I went to law school they said the law's what a judge says it is," California Rep. Henry Waxman recently explained. Rep. Barney Frank of Massachusetts termed it an "air kiss" to the tea party. Washington Post columnist E.J. Dionne labeled the Constitution an "abstraction" preoccupying the GOP.

Leave the Constitution to the courts, their argument goes. Yet many liberals don't want the courts involved in constitutional issues either—at least not in any robust way. As challenges to ObamaCare work their way through the courts, we hear lamentations that such attempts represent judicial activism and are undemocratic. This leaves the president to protect the Constitution. But when George W. Bush asserted his own interpretation of the Constitution, liberals raised the specter of an "imperial presidency."

So who, precisely, is supposed to protect the Constitution? Article VI provides that all of our elected and appointed officials in both federal and state government "shall be bound by Oath or Affirmation, to support this Constitution." The president takes a special oath to preserve, protect and defend the Constitution. These oaths reaffirm the constitutional language and structure that require each branch to take seriously the constraints of the Constitution.

Contrary to popular belief, and the beliefs of some lawyer-congressmen, the Supreme Court does not maintain a monopoly on constitutional interpretation. The court has an important role to play in reviewing the constitutionality of legislation and executive branch action, of course. But it cannot and should not exercise this power alone.

The political branches also have an obligation to support the Constitution by ensuring that their actions are within their constitutional authority. In my experience in the White House counsel's office, lawyers within the executive branch regularly analyzed the constitutionality of the president's actions. Moreover, agency lawyers analyze proposed legislation with an eye toward possible constitutional problems and report these to Congress.

Congress, however, has largely yielded the field of constitutional interpretation. Although it may make findings demonstrating that a law is within the Commerce power or the Spending power, it rarely engages in sustained debates about the constitutionality of particular legislation.

Scholars and experts have offered many explanations for Congress' lassitude. One is that the court has asserted a robust view of its own powers over constitutional interpretation, which has caused Congress to back down on certain key issues.

In addition, in modern times constitutional deliberation has rarely enjoyed a political constituency (although perhaps it does now with the tea party-backed members). It simply has not been worth the time and effort for most congressmen to thwart legislation on constitutional grounds. Mr. Waxman's comments are emblematic of a widespread sentiment that if a law is unconstitutional the Supreme Court will say so. Until it does, full steam ahead.

It wasn't always this way. In the early years of the republic, most constitutional decision-making occurred in Congress and the White House. Members debated the constitutionality of great issues such as the National Bank. Indeed, even after the Supreme Court upheld the constitutionality of the National Bank, President Andrew Jackson vetoed a bill to renew the bank on constitutional grounds. His veto message eloquently explained the rationale:

"The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision."

It may be that when all of the departments of government carefully consider the meaning of the Constitution they will disagree. The president may veto bills on constitutional grounds, or determine that a statute cannot be enforced constitutionally. Congressmen may have different views of their powers—such as what they consider necessary and proper for a regulation of interstate commerce. This is no different from the Supreme Court, where narrow majorities decide many controversial issues and constitutional doctrine evolves, for better or worse, over time.

The Constitution is not an abstraction to be consulted by lawyers and judges alone. House Republican efforts to reintroduce it to congressional deliberation will only make the document stronger and more relevant to a government of the people.

Ms. Rao, who worked in the White House Counsel's office from 2005 to 2006, is an assistant professor at George Mason Law School.

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