Congress Has Strayed from the Constitution

Michael Schwarz

November 1, 2010

There may not be a silver lining in every dark cloud, but it often seems that way in American politics. The outgoing 111th Congress, which a majority of American voters has judged to be one dark storm cloud, leaves behind it at least one silver lining: As a result of its actions, a serious political conversation began.

Alarmed by the sudden expansion of government into areas of their lives they did not imagine it could or would go—the health care and automotive industries, for example—many Americans took up the serious discussion of their republic and its constitutional principles.

They are now asking serious questions of their representatives. From what source does the federal government derive the sweeping authority it now claims? How do we determine the appropriate balance between government power and liberty? In times of political ferment, these problems merit reflection from all points on the political spectrum.

But not everyone embraces serious constitutional debate. They are the ones who take their cue from the once-powerful, now former House Speaker Nancy Pelosi. During a press conference more than a year ago, when asked where the Constitution authorized Congress to compel individuals to buy health insurance, Pelosi responded: “Are you serious? Are you serious?

This dismissive reply annoyed many Americans, who heard a familiar strain of elitist authoritarianism that often infects the progressive mind. Perhaps Pelosi and others who share her outlook, such as California Rep. Pete “The Federal Government Can Do Most Anything in This Country” Stark, have never contemplated the idea that the Constitution might limit their authority. Or worse, they know that it does, but they do not wish to highlight constitutional limits on government power while they pursue policies that both expand their power and ignore those limits.

While those such as Pelosi work to belittle dissent, many rank-and-file progressives simply cannot see the relevance of constitutional questions. These well-meaning, intelligent and educated progressives begin most political discussions by identifying problems, usually social problems, and then conclude that democratically elected governments should have the authority to tackle those problems by all means necessary. When pressed to address the constitutional questions, these progressives often respond with something such as: Do you really mean to say that the federal government cannot act in any area of American life unless the Constitution specifically authorizes it to do so? But the Founders could not have anticipated industrial capitalism, airplanes, the Internet, etc. So why should we limit ourselves to an 18th-century-style government?

The response to these reasonable questions is that the Founders did anticipate changes over time, which is why they gave us the amendment process. Though this method of expanding the government’s reach is more cumbersome than the task of winning majorities in Congress, the deliberation and debate that an amendment process requires of the people makes it far preferable to mere assertions of authority by those who wish to wield it.

Put another way, if the Constitution—through the people’s consent—created the federal government, and if that Constitution outlines the federal government’s powers, then how, and under what principle, might the federal government derive its powers from a source beyond the Constitution? We have elections in order to choose leaders who will govern according to the dictates of the Constitution, and these leaders must take an oath to uphold that Constitution. We do not hold elections in order to grant unlimited powers to our representatives or to give them the unbridled authority to change the rules we set out for them. They cannot disregard those rules merely because they find them inconvenient or troublesome.

These are the questions that are raised by the recent actions of the 111th Congress, and they are the question we ought to be discussing as the new Congress prepares to take its place

Michael Schwarz is an assistant professor of history at Ashland University and a fellow of the Ashbrook Center.