What a time of right and reason

Strange Powers – The Magnetic Fields

The Republicans, newly in control of the House, have decided to institute a complete reading of the Constitution today.  Beyond that, they’re now requiring all Congressional bills to include statements of constitutionality.  Effectively, when passing a law Congress must now state clearly the part of the Constitution from which it derives the authority to enact the changes.

This is easy to mock, for the obvious reasons: it’s purely symbolic, what about the stuff they don’t like (are they going to whisper when reading the 4th Amendment?), and so on.  Probably the most damning criticism is that this is not just symbolic, it’s obnoxiously symbolic insofar as it seems to be a snide claim that Republicans alone genuinely value the Constitution.  Which is irritating for another set of obvious reasons.  But in spite of all that, I’m completely in favor of this.

Maybe Republicans want to score a political point, but I think it will have little relevance on that front.  If it means anything, it will simply institute a (slightly) deeper engagement with its part to play in a broader Constitutional interpretive process. Yes, we have Marbury v. Madison, but even by the boldest theory of judicial review there is no reason to think that the other branches should completely shirk their responsibilities as agents of the constitutional order.

Robin West (among many others) has written very persuasively about the importance of Congress not completely ceding the task of constitutional judgment to the courts.  Her argument is that a Congress more attuned to this front will be more aware not only of the need to justify its bills but also might grasp some of its obligations to the broader project of equity and egalitarianism.  Section 5 of the 14th Amendment, for example, includes a broad grant of powers to Congress for the enforcement of the Privileges Or Immunities, Equal Protection, and Due Process Clauses.  Those powers have been curtailed over the years in part because Congress has simply made little effort to fight for them–or even grasp them.

Simple statements that declare constitutionality are not going to do anything by themselves, of course.  But it would be great if Congress recognized that constitutional interpretation is as much political as it is legal – and that a bold and forthright defense of its own power has every possibility of restructuring our understanding of the matters at stake.  Which is to say: if there is even the slightest chance that this change will invigorate Congressional debate about the extent of its own powers this is probably a good thing.  And if it’s merely symbolic, at least the ways that it’s positively symbolic militate against the negative ones.