Taking the Constitution Seriously

January/​February 1999 • Policy Report

“Now I know there are some who say,well, that’s not within the Constitution,but there are a lot of things not in theConstitution that we do all the time.”
-Sen. Harry Reid (D‐​Nev.)
Fox News Sunday, Jan. 25, 1999

Over the past year of presidential scandal, much was heard about the Constitution and its impeachment provisions. By year’s end, to their credit, most House Republicans and a few Democrats had followed those provisions despite sometimes deafening calls from pollsters, most Democrats, and a few Republican “elders” to censure the president — the “middle way” that, if more than a slap on the wrist, would have compromised both the separation of powers and the Constitution’s prohibition on bills of attainder. In thus resisting popular opinion, House Republicans reaffirmed that we are a nation governed by a constitution, not by shifting political winds. They held that Congress is not a sitting constitutional convention, empowered to rewrite the Constitution in response to the latest polls. And they demonstrated that Congress, no less than the president, is bound by the rule of law.

That kind of fidelity to constitutional principle is all too rare in modern Washington. During most of the 105th Congress, in fact, Republicans were no less likely than Democrats to ignore constitutional limits on their power. When they needed the Constitution, as in the impeachment battle, they called upon it. But otherwise, like Democrats since the New Deal, they simply assumed that Congress had plenary power to address an endless range of national “problems.”

To be sure, Republicans often talked of limited government, but the talk was invariably pragmatic, not constitutional. They argued that state and local governments could do a better job of providing education or health care, for example, not that the federal government had no authority over such issues. And they discussed federalism in the language of “good government” — as in federal‐​state “partnerships” — not in the language of checks and balances, as the Founders intended. Never did they ask such basic questions as “Where in the Constitution do you find authority to fund 100,000 new teachers?” And when it came time to act — the transportation bill, the 4,000-page Omnibus Appropriations Act — all talk of limited government was forgotten.

Not even the incoming Republican freshmen seem ready to infuse new blood into the party, as the 74 “radicals” did in 1995. In fact, the tone may have been set by class president Jim DeMint of South Carolina, tapped by party leaders for a Republican issues task force. At a Heritage Foundation orientation in early December, DeMint said that his class, owing to the smaller Republican margin in the House, will not follow the “crash‐​and‐​burn strategy” of the revolutionaries of 1995 but instead “will have to be more careful about stirring up trouble.” If DeMint’s point is one of style only, that is fine. But at that same meeting, Ernie Fletcher of Kentucky, freshman class representative to the leadership, was heard to say: “We want to pick out a few main issues that we can promote as our agenda, and they will not be issues that are divisive.” And John Sweeney of New York, freshman class representative on the Republican Steering Committee and a former top aide to Gov. George Pataki, chimed in with the “good government” theme: “There is a higher calling [than partisanship]—this is about governing.”

Governing is indeed what Republican leaders seem to have enjoyed most since they took over Congress in 1995. For in the ensuing four years, despite the rhetoric of less government, not a single federal department, agency, or program of any significance was eliminated; the tax code grew vastly more complex, along with federal regulations and the criminal code; and federal spending expanded far more than it did during 40 years of Democratic rule. Thomas Jefferson’s observation is thus confirmed: “The natural progress of things is for government to gain ground and for liberty to yield.” Economists of the Public Choice school have explained that natural progress by pointing to the concentrated benefits and dispersed costs that invariably attend government programs. But the Founders too had a basic understanding of that dynamic—as in James Madison’s discussion of “factions.” In fact, it was precisely to thwart that natural progress that they wrote a constitution that limited government.

To serve its ends, however, the Constitution must be taken seriously. House Republicans have done so in the extraordinary business of impeachment. But if that effort is itself to be taken seriously, they must also abide by the Constitution in the ordinary business of governing. Their contempt for presidential dishonesty is well taken, as is their respect for the oath to tell the truth and the more general oath of office. But they too take an oath to support the Constitution—yet daily ignore that oath. The time has come to build on this recent resurgence of constitutional respect. Toward that end, there follows a concise constitutional primer, focusing on the broad principles of the document; a quick history of the demise of those principles; and a few thoughts about what must be done to restore constitutional government in America.

This article originally appeared in the January/​February 1999 edition of Cato Policy Report.

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