The New Federalism Part II: Honoring our Founding  

Wednesday, September 28, 2005

Part Two of this series will bring forth and analyze Section 2 of the New Federalist Platform, which deals with honor and respect for the Founding Fathers and their belief system, which is responsible for the Constitution and our freedoms in the first place.

Honoring our Founding

We New Federalists begin from the proposition that our Founding Documents, the Declaration of Independence and the Constitution, bind us in perpetuity as a nation, because the Constitution contains its own internal provisions specifying how revisions to it may be made. We affirm therefore that the rights and powers acknowledged or assigned by our Founding Documents may not permissibly be reassigned, transferred or outright revoked without proper constitutional authorization. In particular, two branches or levels of government may not properly agree to reassign constitutionally specified responsibilities or duties between themselves or to any other body without formally amending the Constitution. Nor may any rights belonging to the people be properly abridged or limited by any agency or institution of government, unless in accord with and as a consequence of due process in our courts of law.

However, we recognize that our Founding Documents are today honored more in the breach than in the observance. We further assert that this condition is the root of our most pressing national problems; the evasion of duties and responsibilities spelled out by our Constitution has produced the worsening crisis of accountability in our governing processes, imperiling our self-government and endangering this system of ordered liberty, as proper constitutionally prescribed remedies can only be brought to bear against those bearing their appropriate constitutional powers.
The Declaration of Independence and the Constitution. These represent the source of the philosophy, rationale, and legal application of the Founders' vision of a free nation where everyone basically takes care of himself and those dear to him, and government's only purpose is to secure the basic rights as granted by God (the "Creator") and guaranteed by the Constitution. The limited powers outlined for the government in the Constitution may not be altered or changed without a proper amending of the Constitution.

The New Federalists are right in saying that the provisions set forth in the Founding Documents are violated more often than followed, and they are right in saying that these violations and usurpations are the source of the most urgent problems we face as Americans. As Americans, the New Federalist platform offers the following as to how we should approach this problem:

We thus urge all citizens, elected and appointed representatives, and officers of our government to return to the plain meaning of our Founding Documents, reassuming their appropriate roles, rather than relying on contorted interpretations and distorted extensions of them. But our country did not arrive in this predicament overnight, and avoiding unneeded upheavals may require returning to our foundations in a gradual, measured manner. To achieve the goal of once again fully honoring our founding, we propose the following, as beginning steps.

Constitutional Authorization Report

Proposed Legislation

Not all legislation contemplated or enacted by Congress is constitutional. For example, the 1st Amendment stipulates that Congress may not make laws establishing a national church or preventing citizens' free exercise in religious acts, and the 10th Amendment states that those powers not specifically delegated to the United States are reserved to the separate states or to the people. This means that there are bounds beyond which Congress may not permissibly legislate, no matter how worthy or desirable the proposal's intention.

Moreover, Congress squanders our common resources and undermines its own legitimacy by proposing legislation that will not pass constitutional muster. We thus urge both chambers of Congress, the House of Representatives and the Senate, to revise the rules of their respective proceedings (as authorized in the Constitution, Article I, Section 5), requiring that no legislation may be brought to the floor for consideration, unless a majority of members of the body shall have signed a report giving specific citation and affirming detailed reasons why the proposed legislation is authorized to Congress by the Constitution. (We believe these prior Constitutional Authorization Reports, together with current lists of congressional signers, for all proposed and enacted legislation, should also be made widely available to the public, so that citizens may review the constitutional reasoning of their elected representatives. And the availability of such reports to the courts will facilitate judicial reviews and decisions regarding constitutional challenges to laws enacted.)
One of the most important parts of the New Federalist platform is the concept of ALL Americans, not just those involved in the federal and state/local government, being a part of the solution. ALL Americans are responsible for their fate and the fate of this great nation. Every American must play his appropriate role.

Another important statement made in this section is that the Congress is capable of violating the law by passing certain types of legislation, even if that legislation is well-intended. A good example of this sort of thing is the recent bombardment of Louisiana with federal tax dollars earmarked for the rebuilding of New Orleans. While this is clearly a compassionate thing to do, there is nothing in the Constitution that authorizes the federal government to spent your tax dollars in this fashion. By doing this sort of thing, Congress "squanders our common resources and undermines its own legitimacy". This is exacerbated by the continuous reports of how government money is routinely wasted. The flood waters in New Orleans haven't even receded completely yet, and already Congress is operating outside its authority, sending money not even directly to the victims, but to FEMA, an unconstitutional agency that is already known to be prone to waste.

Requiring House and Senate members to sign off on a constitutional authorization prior to any bill's consideration makes perfect sense. I would even go a step further and propose a constitutional amendment requiring that they do so. After all, any organization that is authorized to change its rules of order is likewise authorized to change them back. Constitutional authorization requirements will also force Congress to justify to the courts in advance their reasoning for allowing legislation to come to the floor on a strictly constitutional basis.

Final Sunset For Prior Legislation

Even more damaging than proposed congressional actions in the future, though, are those pieces of past legislation, driven by whatever good or bad intentions, that were not specifically authorized to Congress by our Constitution. Furthermore, the requirement to reconsider each piece of prior congressional legislation still in effect would be unwieldy and would prevent Congress from fulfilling its duties and responsibilities to meet the challenges of the present and near future. We propose therefore that Congress pass a blanket Final Sunset for all prior legislation to expire, and we recommend a period of no more than five years hence, unless the relevant bill is reintroduced for a vote under the Constitutional Authorization Report requirement. (This would provide Congress with a power akin to the President's "pocket veto," and it would avoid counterproductive squabbling over those "settled questions" that fewer than a majority of Members still support as constitutional.)
No one is saying that any prior piece of legislation was necessarily ill-conceived. All we are saying here is that there's a lot of unconstitutional legislation out there.

The idea here is to simply clean the slate and start over. If a piece of legislation has a constitutional justification and Congress would like to keep it, let them bring it to the floor again under the new rules. Nothing I can think of on the matter would be more sensible.


We also urge that all state legislatures adopt similar State Constitutional Authorization Reports as part of the rules governing their own proceedings.
This would go a long way in limiting socialism at the state level.

Oath Of Office Violations

The Constitution mandates that all Members of Congress, all Members of State Legislatures, and all judicial and executive branch officers of the United States and the several states "shall be bound by oath or affirmation to support this Constitution." We propose that these oaths be taken seriously, as binding on our representatives and officers once more, by returning to private life as rapidly as possible those who violate their oaths of office. We do not suggest this as a means of foreclosing differences of opinion, or as a method for limiting the robust levels of debate and dissent that enliven and strengthen our civic life; this proposal is intended only to remove from office those representatives and officers clearly ignoring the plain language of our Founding Documents, with the intent of abusing their powers of office to subvert those documents defining their offices.
Why not consider these oaths binding? We consider the oath taken in a court of law to tell the truth binding - those who violate that oath are often subject to incarceration. Those who violate their solemn oath of office should be subject to impeachment, period.


The Constitution allows each chamber of Congress to expel a Member, with the concurrence of two-thirds (Article I, Section 5), and we urge both the House of Representatives and the Senate to create and convene permanent committees or subcommittees to provide speedy review of charges, under the public signatures of three Members, and giving precise constitutional citations and detailed and corroborated evidence, that another Member has violated the oath of office. If this review establishes that the charges have merit and foundation, the matter should be brought to the chamber floor for a vote of expulsion.
I can think of a few we could start with, Democrats and Republicans alike. Actually, I do advocate giving all members of both houses the opportunity to comply with constitutional limits in a good faith effort to reimplement the Founders' vision. It's time to reaffirm our commitment to that which they gave us.

Executive And Judicial Impeachment

The Constitution provides that all civil officers of the United States, including the President and the Vice President, may be impeached on the basis of "high crimes and misdemeanors" (Article II, Section 4), which certainly includes violations of the oath of office. We urge Congress to invoke this underutilized tool more frequently, and especially when executive and judicial branch officers repeatedly and egregiously act in ways not specifically permitted to them by the Constitution.

Judicial Review

The Constitution further provides that the judges of the supreme and inferior courts of the United States "shall hold their offices during good behavior" (Article III, Section 1). Congress should adopt the sense that "good behavior" in judges rests on adherence to their oaths of office to support the Constitution, and that violation of their oaths is cause for removal from judicial office, including immediate impeachment, if necessary in cases of egregious violations of support of the Constitution. We also urge the Senate to adopt standard periodic reviews of the "good behavior" of judges, reviewing their records of decisions and comportment at least once every five years after confirmation, and to terminate the appointment of any judge not receiving affirmation of "good behavior" from a majority of Senators.
As stated above, there must be serious consequences for violating any oath requiring the upholding of the Constitution. This should hold true for all officeholders in the government. It only makes sense, since we have seen time and again the usurpation of the Constitution at all levels and from all branches of government.

State Of The Union Colloquy

The Constitution states only that the President "shall from time to time give to the Congress information of the state of the union" (Article II, Section 3). This custom now involves an annual address given to both Houses of Congress assembled in the chamber of the House of Representatives, with the Vice President and the Speaker of the House presiding. Furthermore, the advent of modern communications has made this no longer merely a report to the Congress but also an address to the nation as a whole. We lament that the evolution of this custom, from such a modest requirement of the Constitution, has added to the trappings of the presidency so as to render the office seemingly more imperial than executive, and the President himself to appear as a grandiose ruler rather than an elected servant of the people, who possesses no greater rights than any other citizen of our free republic.

But nothing in the Constitution mandates that these conditions must persist. We propose therefore that Congress extend an invitation to the President to appear and speak in congressional chambers under the condition that the President engage in a colloquy with Members of Congress by accepting questions from the floor, immediately upon conclusion of his address. As modern Presidents routinely engage in press conferences, taking questions from journalists, this opportunity for Members of Congress to present queries and challenges directly to the President should be no undue burden.
This would bring an end to the media circus we call the "State of the Union Address". I would add that this dialogue between the President and Congress should be held under more private conditions. I might even go as far as to say that even this may be too much. Why not just have the President prepare a document and send it along to Congress like President Washington did?

Constitutional Convention

Given the current lack of adherence to constitutional limitations, and the generalized lack of understanding of constitutional boundaries set for our federally distributed and separated and balanced powers, which at times now shade into downright hostility toward the plain sense of our original Founding Documents, we do not favor a Constitutional Convention at this time.
Point in fact: Most, if not all, of the problems we face today as Americans stem directly from the fact that the limits the Constitution places on the federal government have not been adhered to. Why have a constitutional convention to fix something that isn't broken? Reining the government in and bringing it back within its constitutional limits will solve all of the problems big government has brought us, including the huge debt problem it has brought on.

The Founding Fathers were some of the wisest men ever to live. They were definitely the wisest ever to assemble in one place for a purpose. It makes sense to use what they gave us to bring renewed prosperity and freedom to a people who have been oppressed by their own ignorance for the last hundred years. We Americans brought these problems upon ourselves by letting politicians into areas they had no business getting into. We Americans are the only ones that can bring these usurpations to an end. The New Federalism is the way to do it.