The House Stands for Law and Liberty

It's like Congress went poking into the sides of a sofa and found the Constitution that people once talked about. 2011 is America's Josiah moment (2 Chronicles 34), if I may put it that way.

George Will celebrates this in his column, "A Congress that Reasserts Its Power" (Washington Post, January 16, 2011).

The eclipse of Congress by the executive branch and other agencies is Congress's fault. It is the result of lazy legislating and lax oversight. Too many "laws" actually are little more than pious sentiments endorsing social goals - environmental, educational, etc. - the meanings of which are later defined by executive-branch rule-making. In creating faux laws, the national legislature often creates legislators in the executive branch, making a mockery of the separation of powers. And Congress makes a mockery of itself when the Federal Register, a compilation of the regulatory state's activities, is a more important guide to governance than the Congressional Record.

Unfortunately, courts long ago made clear that they will not seriously inhibit Congress's scandalous delegation of its lawmaking function to others. So Congress should stop whining about the actions of the EPA (emissions controls), the FCC ("net neutrality"), the Interior Department (reclassifications of public lands) and other agencies and should start rereading Shakespeare: "The fault, dear Brutus, is not in our stars, but in ourselves, that we are underlings." 

Barney Frank's view is that Congress should do whatever it darn well pleases, and if the courts have a problem with it, they'll say something. But Will sees the courts, those guardians of the tablets, as having failed in their duties.

Regarding the relevance of the Constitution, you must remember this: Rep. Nancy Pelosi, asked about the constitutionality of the health-care legislation - a subject now being seriously litigated - said, "Are you serious? Are you serious?" She was serious. She seriously cannot comprehend that anyone seriously thinks James Madison was serious when he wrote (Federalist 45), "The powers delegated by the proposed Constitution to the federal government are few and defined." Unfortunately, for too long too many supine courts have flinched from enforcing the doctrine of enumerated powers, and too many Congresses have enjoyed emancipation from that doctrine. So restraint by the judiciary must be replaced by congressional self-restraint. 

This may sound strange, but it looks like it is Congress to the rescue for liberty. Interesting, isn't it, that it is never the Senate to the rescue. In 1994 and 2010, it was the lower house of the popular branch.