On Bradley Rees' Selective Reading of the Constitution (Guest Post)

(Roland the HTG, a guest contributor here before, offers his thoughts on a new post by Bradley Rees)

Republican candidate/blogger/Fair Tax aficionado Bradley Rees posted recently on his belief that 5^th District Congressman Tom Perriello is “breaking his oath," assumedly, though not explicitly stated, Perriello's oath to uphold the Constitution. Basically, according to Rees, Perriello broke his oath to his constituents, and they, mad as hell, should call Perriello. Included in his post is an email from Bill Hay, head honcho of the Charlottesville [tea partiers], which in turn quoted H.R. 450, legislation that would require “a concise and definite statement of the constitutional authority relied upon for the enactment of each portion” of every Act of Congress from now 'til Doomsday. Hay’s email then lists the enumerated powers of Congress that appear in Article I.

With a few glaring exceptions. While Hay/Rees list out the provisions for federal courts and post offices, they shockingly choose to forget the first and last clauses of Article I, Section 8:

“The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States;…

…[and] to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.”

Selective constitutional memory is a dangerous thing. Rees brags on his blog of not being a lawyer; in fact it’s one of the four planks of his campaign platform. While his point about lawyers being overrepresented in the Congress, compared to their proportion of the general population, is well taken, it seems to me an absurd proposition that the makers of laws should not have some training in legal thought, legal practice, and most importantly legal writing. It’s easy to vilify the lawyers, but it isn’t intellectually honest to write them off completely.

The fact that the framers included the Necessary and Proper clause, giving the Congress the power to do what had to be done in order to “provide for the general welfare,” shows in the Constitution itself their understanding that a static document would not support a republic that was expanding its horizons, in geography, technology, and demography. But outside the Constitution, far more evidence exists of their belief in a living document. Take, for instance, my main man Thomas Jefferson (Wahoowa, Drew if you delete this part I will hurt you) [Go Hokies!]:

“A generation may bind itself as long as its majority continues in life; when that has disappeared, another majority is in place, holds all the rights and powers their predecessors once held and may change their laws and institutions to suit themselves. Nothing then is unchangeable but the inherent and unalienable rights of man.” (1824 letter to Jon Cartwright)

Ol’ TeeJ and his compadres never meant for the Constitution to last much further than their own generation. They wrote in the specific problems of the day that most urgently needed to be handled by the new Congress, but put in the escape hatch for when those needs had been taken care of.

(Brief aside—There are a lot of so-called strict constructionists who seem very willing to chuck out the Constitution when it gets in the way of their immigration policies. The issue of “anchor babies,” children born in the United States but to illegal alien parents, is not an issue that can be fixed with an Act of Congress. First sentence of the 14^th Amendment: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” You want to erase their citizenship, amend the Constitution. Good luck.)

I’m interested to see how Rees’s campaign develops. So far he’s been a single-issue candidate, just railing against federal spending and bureaucracy. I’m curious as to how his constitutional interpretational theory (quote what helps you, leave out what doesn’t) fares when tackling other issues, like job creation, infrastructure, and healthcare. He faces an uphill battle trying to claw into a race as the Republican nomination for Congress. If the only message he’s got for people to latch onto is the kind of bunk he’s backed so far, that hill becomes a mountain.