September 13, 2011
To the Members of the 112th Congress:
Constitution Day approaches, the day on which we annually commemorate the signing of the Constitution on September 17, 1787, in Independence Hall in Philadelphia. Americans—constitutional people that we are—should celebrate. After declaring our independence in 1776, the first action that “We the People” took was to give ourselves constitutions in our various states. Then we created our first national constitution, the Articles of Confederation. A few years later we replaced the Articles with the Constitution we still have today. We are not the oldest country in the world, but our written Constitution has endured longer than that of any other people. That fact is worth not only celebrating, but pondering.
This is especially important for members of Congress. As these letters have had occasion to observe, Congress is at the very heart of our experiment in constitutional self-government. In the Constitution, Congress comes first: it is Article I. Congress holds the law-making power without which the president has much less to do and the federal courts nothing at all.
Congress also has the greatest responsibility for interpreting our Constitution. Most people think that it is the job of the Supreme Court to tell us what the Constitution means. It is true, as Alexander Hamilton wrote in The Federalist #78, that “it is the proper and peculiar province of the courts to say what the law is,” but many people have misinterpreted this passage. Hamilton does not say, and does not mean, that the Supreme Court is the only part of the federal government with the authority to interpret the Constitution, or that its interpretations are automatically supreme over Congress. He is simply defending the power of the federal courts to interpret the Constitution in order to decide the legal case in front of them, as courts must do. As he says in the essay, he is defending the independence of the federal courts, not their supremacy.
In fact, of all the branches, Congress has the primary authority to interpret the Constitution. Like the president or the Supreme Court, Congress receives its power from the Constitution. Just as the president has no authority to act against the Constitution, you in Congress have no authority to pass legislation that violates it. So—as the 112th Congress has distinguished itself by recognizing—every time you consider a bill, the first question you must ask yourself is not: “Do my constituents like it?” or even “Is it a good idea?” but “Is this Constitutional?” That’s not a matter of partisan politics; it’s a matter of legitimate authority.
In asking the very question, “Is this bill constitutional?” members of Congress are interpreting the Constitution. You can take that duty seriously or unseriously, but you cannot avoid it. In making ordinary law, Congress necessarily makes a judgment on the meaning of the “Supreme Law of the Land.” Unlike the other branches, however, Congress is the first place for these judgments. The president does not have to consider the constitutionality of a bill until it reaches his desk; the Supreme Court does not have to think about it unless and until a case reaches its bar. You must weigh it while the legislation is being drafted, while it is being examined in committee, and while it is being debated on the floor. A bill should never make it out of committee, much less Congress, without the most serious constitutional deliberation.
This is why it is so heartening that the 112th Congress began by reading the document that enumerates its powers, and why it is so important that bills cite their constitutional source of authority. It means that Congress is taking seriously its duty to interpret our Constitution.
In doing that, you are restoring an old tradition that had almost been forgotten. Since the beginning of the Republic, Congress has been the place for our nation’s great constitutional debates. Consider the disputes in the 19th century over the national bank, or the tariff, or the power of Congress to prohibit slavery in the Western Territories. Or in the 20th century over regulating industry, establishing Social Security, or passing the War Powers Resolution. At each of these moments, it has been Congress that engaged in the most serious and searching debate on the meaning of the Constitution.
That constitutional deliberation must continue in Congress if we are going to restore the American experiment in self-government. For it is in Congress where the American people most fully govern themselves: where the common rights and responsibilities of the American people are submitted to law, and where the variety of the legitimate interests of the American people are most fully represented. When people’s representatives engage in constitutional deliberation, the American people engage in it too.
This is a day to remember that if the Constitution is going to endure—if the American people are going to continue to be a constitutional people—Congress must be the place where the Constitution is most deeply studied, interpreted, and lived out. Only then will the habits and principles of constitutional government be restored in our law.
Happy Constitution Day.