A local political activist related an interesting exchange that allegedly occurred at a recent political event.

During a discussion with a congressional candidate, an interested citizen asked about the constitutionality of the Patriot Act. The candidate’s response was something to the effect of, “Show me where it’s NOT constitutional.”

The response illustrates yet another example of bass-ackwards thinking in America.

Those who respect the Constitution and hold to the founder’s ideas of limited federal power have somehow allowed themselves to fall back into a defensive position. Statists take the offensive, challenging liberty lovers to prove that they can’t do something, instead of justifying the constitutional authority that allows them to pass certain acts.

I blame the courts. We’ve come to accept a system where the legislative branch does as it pleases and then hopes a sympathetic court will allow the law to stand. This has politicized the judicial system and created a mentality that allows for statements like the congressional candidate’s cited above.

Shouldn’t the onus rest upon the shoulders of those making the laws? Shouldn’t a legislator be able to articulate the enumerated power in the Constitution that allows the federal government to take action within a given sphere?

In truth, no law should pass the U.S. House or Senate without lawmakers possessing a clearly defined understanding of the constitutional authority to do so.

In January 2009, Rep. John Shadegg (R-Ariz.) introduced H.R. 450. Titled the Enumerated Powers Act, the bill would require, “Congress to specify the source of authority under the United States Constitution for the enactment of laws, and for other purposes.” The bill has 70 co-sponsors, including Rep. Geoff Davis.

In June 2009, Sen. Tom Coburn (R-Okla.) introduced a similar bill in the Senate, S.1319. Both Sen. Jim Bunning and Mitch McConnell joined with 22 other senators as co-sponsors.

Both bills are buried in committee.

I’m not naive enough to believe that this resolution would prevent any overreach of federal power. But it would at least force lawmakers to  stop and consider the limits of their constitutional authority, and it would allow we the people to get a nice glimpse of the illogical reasoning used by legislators to justify unconstitutional acts.

And perhaps it would keep legislators from making ridiculous statements like, “Show me where it isn’t constitutional,” with a straight face.


cross-posted from the Kentucky Tenth Amendment Center

Mike Maharrey

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