Editore"s Note
Tilting at Windmills

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January 4, 2011

CHERISH THE CONSTITUTION (EXCEPT FOR A FEW INCONVENIENT PARTS).... Rep. Scott Garrett (R) of New Jersey isn't the highest profile member of the new House GOP majority, but he does offer one of the more radical constitutional worldviews on Capitol Hill.

Garrett is allied with the extremist "Tenther" effort, which effectively argues the federal government lacks the legal authority to do much of anything outside the explicit text of the Constitution. In practical terms, this means Garrett would like to eliminate all federal spending on public schools and transportation projects, for example, since the Constitution doesn't say federal officials have the authority to invest in education and infrastructure.

With this in mind, we know House Republicans want members to cite constitutional authority when sponsoring bills, but Garrett would like to go even further.

Garrett's House rule resolution would require all bills and amendments to contain a statement appropriately citing a specific power granted to Congress in the Constitution. Invoking the "general welfare clause" or the "necessary and proper clause" would not be adequate constitutional citations.

This is almost hilarious. Republicans want lawmakers to reference the Constitution to justify their legislation, but Scott Garrett wants to exclude the parts of the Constitution he doesn't like.

For all the recent talk from the right about honoring, reading, and celebrating constitutional principles, here we have one extremely conservative Republican insisting that two critical provisions of constitutional text more or less don't count.

As Ian Millhiser explained:

The General Welfare Clause states that Congress has the power to "provide for the ... general welfare of the United States," and is the basis for virtually all federal domestic spending. So Garrett's proposal would prevent Congress from spending money on pretty much anything except for the military (another provision of the Constitution that Garrett does not propose ignoring empowers Congress to "provide for the common defense.") The Necessary and Proper Clause, while not quite as essential to a functioning government as Congress' power to spend money, is the basis for Congress' power to print legal tender.

I'd feel a little better about Republicans' alleged interest in the Constitution if they didn't pick and choose which provisions deserve their support.

Steve Benen 3:00 PM Permalink | Trackbacks | Comments (28)

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Comments

See, I don't have a monopoly on right-wing loons...

Posted by: South Carolina on January 4, 2011 at 3:08 PM | PERMALINK

Thank god for C-SPAN, because it's gonna be better than the Daily Show!

Posted by: DAY on January 4, 2011 at 3:11 PM | PERMALINK

I'd feel a little better about the GOP is they were all out of office.

It's going to be a really irritating two years.

Posted by: fourlegsgood on January 4, 2011 at 3:22 PM | PERMALINK

He is not 'the highest profile' member of the GOP house, but he is certainly not the most highly intelligent either.

He sounds like a total idiot.

Is this REALLY what corporations want from us? That all our tax money go to support military intervention to force other countries to knuckle under to them? The way, say that the cables leaked show the US badgering Europe on behalf of Monsanto to get them to approve GMO food?

Seriously? They don't want national highways, quality medicine for the populace so they don't have to deal with plagues, for example?

Freud famously asked, "What does a Woman Want?" We have to ask corporations the same question in all seriousness. Their 'vision,' like Bush the First's, is seriously flawed.

Posted by: jjm on January 4, 2011 at 3:25 PM | PERMALINK

I'd like to know where in the constitution it says that bills must reference the constitution. Where is that in the constitution? Yeah, where?

Posted by: estamm on January 4, 2011 at 3:26 PM | PERMALINK

"Freud famously asked, "What does a Woman Want?" We have to ask corporations the same question in all seriousness. Their 'vision,' like Bush the First's, is seriously flawed."

Ask Obama what corporations want. He delivers.

Posted by: COD on January 4, 2011 at 3:36 PM | PERMALINK

The Democrats would do well to make Rep. Scott Garrett (R) of New Jersey the highest profile member of the new House GOP majority ... !

Posted by: ManOutOfTime on January 4, 2011 at 3:38 PM | PERMALINK

This is going to be two years of self imposed road block. Wait until some important agencies and departments like the NIH and HHS lose all their funding.

I predict that in short order the tea party loons are mostly going to ignore this silliness.

Posted by: Ron Byers on January 4, 2011 at 3:40 PM | PERMALINK

The dems would be wise to raise this as an issue and broadcast the fact that the nutballs are against most government programs and would like to take us back to the 1890s.

Posted by: Objective Dem on January 4, 2011 at 3:40 PM | PERMALINK

George Washington and Alexander Hamilton regarded the "general welfare" clause in Art. I Sec. 8 as conferring broad spending powers independent of the specific grants of power in the rest of the section. Thomas Jefferson and James Madison at first disagreed, but changed their mind once they had to deal with the practicialities of government. In particular, they weren't about to accept a view of the Constitution that did not empower the federal government to purchase Louisiana.

Would representative Garrett return the Louisiana Territory to France?

You know you're a nutjob when you claim to be a support of "orginal intent" jurisprudence, but disagree with Washington, Jefferson, Hamilton, and Madison about what was the "orignal intent" of the drafters of the Constitution.

Posted by: rea on January 4, 2011 at 3:47 PM | PERMALINK

Eliminate spending for public education and transportation. And YOU thought I was hyperbolic when I said Republicans want to return to 19th Century America.

Posted by: KurtRex1453 on January 4, 2011 at 4:08 PM | PERMALINK

I'm picturing Rep. Garrett with scissors and a copy of the constitution. Kind of like the Jefferson Bible, with all the parts he doesn't like cut out.

Posted by: danimal on January 4, 2011 at 4:10 PM | PERMALINK

Shorter Scott Garrett: "The Constitution is sacred and spotless! Except when it gets in the way! Then we ignore it!"

I guess claiming to venerate the Constitution and being a strict constructionist lets you off the hook ... or gives you editorial privileges. That, and the right to ignore nearly a century of Supreme Court decisions as somehow invalid.

Wingnut uber alles. These guys have crawled so far up the rear of their own political program that they have become blind, and don't even appreciate their contortions any longer.

Posted by: Bokonon on January 4, 2011 at 4:23 PM | PERMALINK

US Constitution, Article I, Section 8 (powers of Congress) excerpt:

"To establish post offices and post roads;"

That's transportation infrastructure, and yes, the TeaTards are Tards.

Posted by: Snarki, child of Loki on January 4, 2011 at 4:31 PM | PERMALINK

Guess that means we can kiss the Air Force goodbye. The Constitution only explicitly authorizes the Army and Navy as separate service branches. Sure, both the Army and Navy can own and operate planes, but you just can't make up an entire new service branch. Welcome back, Army Air Corps!

Posted by: Tim H on January 4, 2011 at 4:32 PM | PERMALINK

"They don't want national highways, quality medicine for the populace so they don't have to deal with plagues, for example?"
Posted by: jjm on January 4, 2011 at 3:25 PM

Of course they do.
They just want to be the ones providing it all -- and making their profits on it -- instead of the government's doing so.
Whether they do so for the government directly, as contractors to the gov't (which, I suspect, would raise surprisingly little objection even among the Tenthers), or by charging each and every citizen/end-user individually, either way, they win -- and all of us lose.

Posted by: smartalek on January 4, 2011 at 4:33 PM | PERMALINK

Fine and dandy. From now on every Department of Defense bill must conform strictly to Article 1 section 8:

Congress shall have the power to...[r]aise and support Armies, but no appropriation of money to that use shall be for a longer term than two years.


Posted by: martin on January 4, 2011 at 4:44 PM | PERMALINK

I like what he told the Bergen Record about this yesterday:

"Scott Garrett is nuts," Millhiser said. "I would advise him to actually read the Constitution before he pretends to know what's in it."

Posted by: Melissa on January 4, 2011 at 5:05 PM | PERMALINK

US Constitution, Article I, Section 8 (powers of Congress) excerpt:

"To establish post offices and post roads;"

In the modern sense doesn't 'post roads' refer to our communications infrastructure, like the internet?

Posted by: cld on January 4, 2011 at 5:25 PM | PERMALINK

Substitute "Fundamentalist Christians" for "Republicans" and "Bible" for "Constitution" and you have our new Congress in a nutshell (pun intended).

Posted by: Bob on January 4, 2011 at 5:26 PM | PERMALINK

Garrett's House rule resolution would require all bills and amendments to contain a statement appropriately citing a specific power granted to Congress in the Constitution. Invoking the "general welfare clause" or the "necessary and proper clause" would not be adequate constitutional citations.

Another point in this is that the Constitution is a legal document written within the context of the English common law tradition involving a general reliance on precedent on the one hand tempered by broad ability to interpret the law generally for new and individual circumstances.

What Tea Baggers are looking for is the Code Napoleon a system where if something isn't spelled out to the letter it isn't illegal. I understand the legal systems of countries whose laws are based on the Code Napoleon are generally a lot more corrupt.

The conservative appeal is obvious.

Posted by: cld on January 4, 2011 at 5:30 PM | PERMALINK

The "general welfare" clause, which also says Congress can get the taxes it needs for that, pretty much enables whatever beneficial "social spending" Congress wants to do. I admit that per se doesn't enable legislation, but the claim they can't spend on e.g. public schools since that isn't mentioned as an individual case is lying bunk. These people aren't even honest cranks about their own supposed cause.

Posted by: neil b on January 4, 2011 at 6:30 PM | PERMALINK

As the Constitution expliticly calls for only an Army and Navy, does that mean that the Air Force, Marines, and Coast Guard are all 'unconstitutional'?

Posted by: AmusedOldVet on January 4, 2011 at 7:29 PM | PERMALINK

It is VERY well established that Congress can attach almost any condition to a spending bill. When Federal spending is concerned, the 10th Amendment simply does not apply.

Congress might (or might not) be able to Constitutionally force a State to do something, but Congress can withhold funds if a State does not comply. Don't want to comply with Federally-mandated school requirements? That's your decision, but Congress will just give the school money to another State.

Law students spend two Semesters (or three Quarters) studying the Constitution and the many related Supreme Court decisions. Afterward we realized that Constitutional interpretation is far more complicated and raises more questions than we ever could have imagined when we started.

Posted by: Brenda Helverson on January 4, 2011 at 10:13 PM | PERMALINK

I'd feel a little better about Republicans' alleged interest in the Constitution if they weren't all so freaking nuts.

Posted by: the fenian on January 4, 2011 at 11:24 PM | PERMALINK

New Jersey's 5th congressional district apologizes for inflicting this idiot on our fine country. He gets re-elected every cycle with the votes coming from people who have no idea what his voting record is.

Posted by: GrammyPat on January 5, 2011 at 12:36 AM | PERMALINK

How do you contract out military work to the likes of Blackwater or Halliburton absent the 'necessary and proper' clause? Congress has the power to raise an army and a navy - and that ain't these guys.

Posted by: Jimo on January 5, 2011 at 12:36 AM | PERMALINK

The constitution certainly does authorize Federal infrastructure spending

"Section 8 - Powers of Congress

The Congress shall have Power

skip

To establish Post Offices and Post Roads;"

Those roads were not for the exclusive us of the US postal service. In the first decades after the ratification of the constitution, the majority of Federal spending (by far) was under this authority.

Now it doesn't explicitly say that those "post roads" could be railroads (which didn't exist in 1987) but it also sure doesn't explicitely authorize an air force

"To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;"

Posted by: Robert Waldmann on January 5, 2011 at 2:16 AM | PERMALINK




 

 

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