Nancy Pelosi (D-CA) told us that universal health care was a good idea.
Pat Tiberi (D-OH) said that faith-based initiatives are a great avenue that America should consider.
Diane Feinstein (D-CA) stated unequivocally that disarming the population is a proposal that would make us a safer. See Diane Feinstein and Shane Krauser’s rebuttal here.
Steve Israel (D-NY) argued that the endless detention of enemy combatants is just plain bad.
And many congressmen, Democrats and Republicans, are confused by the mandate of the president dialoguing with Congress prior to engaging militarily. Instead, they tell us that it is not always in the best interest of America.
What is wrong with America anyway?
The bad news is that we are lost in our approach to solving our problems. The good news is that the solution to the tragedies this country faces is right before us and has been for over two centuries. The solution has never gone away. It’s only been ignored for political reasons.
Congress utilizes a kneejerk reaction in dealing with nearly every one of the issues this country is challenged with, and it is nauseating to watch. Americans must move away from the pervasive idea that the appropriate starting point for making law is whether the law is “good” or “bad,” “moral” or “immoral.”
This approach is the reason why the federal government has enacted so many laws, why our law libraries are stacked full of legal treatises, and why liberties disappear with the simple stroke of a pen without many even giving a second thought. Congress just doesn’t get it and, unfortunately, neither do many Americans.
Just think about this. When was the last time you attended a meeting or watched a political program on television and some idea or potential piece of legislation was discussed? There was undoubtedly a moment where someone said, “That idea is absurd and stupid” or expressed some moral outrage or endorsement of the proposal. Now consider this: Was the Constitution discussed and in what context? I’m betting dollars to donuts that it wasn’t. The rule of law doesn’t seem to be all that en vogue today.
I was recently on a radio program in Arizona where I was to engage in a debate with an individual who didn’t see eye-to-eye with me on a number of contentious issues. When we were asked one question in particular, my opponent responded that the idea was a good one and that we really ought to consider it as a country.
My response was simple: “The Constitution does not allow it, so we have two choices: Either amend the Constitution to allow for such a thing or blatantly disregard it.”
What I was really saying is this: Until we have first established the constitutionality of an idea, it does not matter whether the idea is good or bad per se. This is the fundamental principle surrounding a governing document that seeks to restrain those who would rule with an iron fist.
The problem with taking a “policy first – Constitution second” approach is the unfortunate result: the real problems of this country are only solved by the representatives who are the most persuasive or who have the most significant financial backing to ensure that their voice remains prominent and loud throughout the discussion. The volumes of one’s voice has very little to do with the correct approach of solving this country’s problems.
Congress is in the habit of doing whatever they want, including turning a blind eye to the Constitution. Please do not disregard the last sentence as rhetoric. Emphatically, it is not. Read it again.
Congressman Jim Clyburn (D-SC), for example, illustrates this assertion rather cogently. Clyburn once told Andrew Napolitano, a Fox News Contributor, during an interview that most of what Congress does is probably unconstitutional. The saving grace in his mind was that the U.S. Supreme Court would straighten out those things that Congress got wrong. So much for believing in the oath to uphold the Constitution! Why do we continue to elect these people?
We need to get back to the original approach taken by our founding fathers, which was simple. First, determine the constitutionality of the idea. If the answer to the first question is in the affirmative, then debate the legitimacy or propriety of the idea. If the answer is negative, end of discussion.
Here is a rather simple suggestion that will begin to clear the skies of confusion: Mandate that any congressman who wishes to propose a piece of legislation first justify where in the Constitution such a thing would be justified. If they cannot do so, the legislation should not be entertained.
The people need to start demanding this approach and start asking the question themselves and putting it to their representatives. Until we demand changes such as this, our congressmen and women are like goats lost in a hailstorm, and, until we get back to the basic, constitutional framework of addressing the serious issues of this country, the skies won’t be clearing anytime soon.
Shane Krauser is partner with the law firm of Davis Miles McGuire Gardner, a radio talk show host in Arizona, and the chief contributor of www.freedomfires.com. Follow him on twitter: @ShaneKrauser