Two hundred twenty-one years ago, James Madison was elected to Congress from Virginia. I have been reflecting recently on what the "Father of the Constitution" might have to say if he could sit in on today's Congress. The structure and function of the Congress -- the House, the Senate, the use of Jefferson's Manual to guide deliberations -- would be familiar to him. But what would Madison think about the type of legislation we are considering and the debate surrounding these proposals?
It was Madison who, seeking to calm those who feared an all-powerful central government, wrote, "The powers delegated by the proposed Constitution to the federal government are few and defined." Let me repeat that: "few and defined." Notwithstanding Madison's clarity, today Congress considers and routinely passes legislation regulating virtually every conceivable human endeavor and enterprise. The concept of regulating interstate commerce and levying taxes has been so distorted that a health-care law was enacted that actually requires individuals to purchase a product (insurance) approved by the government. And members of Congress and the president defend this as a constitutionally permissible exercise of Congress's power!
In a rare moment of forthrightness, the Senate architect of the new financial-regulation bill announced that the legislation "deals with every single aspect of our lives." Did the constitutional limits on Congress's power ever even enter into his thinking?
If one looks through the federal government's $3.7 trillion budget and the legislation passed by Congress and regulations created by dozens and dozens of federal rulemaking agencies, one has to wonder whether there is any real limit left on the powers of the federal government.
Over the past several decades, conservatives have made a concerted effort to argue that indeed the Constitution places limits on the powers of the federal government and that those limits need to be recognized and enforced by the courts. And we have had some modest success.
But not everyone is willing to concede that Congress's powers are limited. During her confirmation hearing, Supreme Court Justice Elena Kagan was asked whether she thought it would be constitutionally permissible for Congress to enact a law that says that Americans have to eat three vegetables and three fruits every day. Kagan was willing to call the fictitious law "dumb," but she wasn't willing to say that it might be unconstitutional. Madison might logically conclude that this Supreme Court justice rejects his view that Congress's powers are "few and defined."
It is clear that we cannot rely just on the courts to uphold the Constitution. Congress -- and each of its members -- must take seriously its responsibility to legislate only within the few and defined powers of the Constitution. But for that to occur, appeals to the Constitution during legislative debate have to become more than just another rhetorical tactic.
My colleague John Shadegg of Arizona has proposed that every bill include a section that cites the specific constitutional authorization of the proposition. I commend John and think we can even go a step further. When there is a question about a bill's constitutionality, we should set aside time during debate to focus on that question first. We shouldn't proceed with legislation until we have resolved its constitutionality. Unlike our Supreme Court nominees, all members should be on record as to where they stand on the limits of congressional power.
Madison argued that electoral accountability was one of the bulwarks against tyranny embedded in our constitutional structure. He stressed in Federalist 57 that the frequent elections for the House of Representatives would ensure that representatives "maintain a proper responsibility to the people." Today, millions of Americans are demanding that Congress not only live within its means but begin adhering to the Constitution. The tea-party movement is appropriately vowing to hold elected representatives to account. I hope that by forcing debates and votes in the House on the limits of constitutional power we strengthen the hand of the American people in that endeavor. I think Madison would approve.