Newsweek, the Republican "Pledge, " and the Constitution outside the courts

[Scarberry, Mark]

With regard to the "Constitution outside the courts," a subject on which several list members have written:
 
What does it say about the state of our media that Ben Adler, national editor of Newsweek.com, would make the following assertion concerning the Republicans' "Pledge to America" (http://pledge.gop.gov/ <http://pledge.gop.gov/> ):
 
"Other proposals follow the contract [1994 GOP 'Contract with America'] playbook by calling for changes to the legislative process so as to rein in government. For instance, Politico notes <http://www.politico.com/news/stories/0910/42566_Page2.html> , 'In one standout procedural promise that could prove difficult to keep, Republicans say they will let any lawmaker offer an amendment to a bill that would cut spending.' This is just harmless theatrics. Not so harmless, however, is the promise to require every bill to be certified as constitutional before it is voted on. We have a mechanism for assessing the constitutionality of legislation, which is the independent judiciary. An extraconstitutional attempt to limit the powers of Congress is dangerous even as a mere suggestion, and it constitutes an encroachment on the judiciary." 

(Copied from http://www.newsweek.com/blogs/the-gaggle/2010/09/22/gop-pledge-to-america-looks-unlikely-to-inspire.html <http://www.newsweek.com/blogs/the-gaggle/2010/09/22/gop-pledge-to-america-looks-unlikely-to-inspire.html> .) 
 
Here is a description of the author's position with Newsweek (from http://www.newsweek.com/authors/ben-adler.html <http://www.newsweek.com/authors/ben-adler.html> ):
 
"Since September 2009, he has been back in New York, editing Newsweek's online political and national affairs content as National Editor of Newsweek.com, and thanking God every time he has a slice of pizza."
 
Mr. Adler apparently is not a lawyer, but shouldn't a person in his position understand that Congress at least has the right to consider whether legislation is consistent with the Constitution? I suppose most of us think that Congress has not only a right but a duty to do so. But for someone in Mr. Adler's position to argue that Congress does not even have the right to do so is surprising. 
 
I suppose if the required certification were something other than Congress's certification, then Mr. Adler would have a point. What if the House adopted a rule prohibiting consideration of any bill that had not been determined by the ABA -- or the Federalist Society or American Constitution Society -- to be consistent with the Constitution? Even then, though, it would not be an encroachment on the judiciary but rather an improper delegation of Congress's own duty. 
 
That's not to say whether the "Pledge to America" is good or bad; I hadn't even skimmed it until a few minutes ago. Its intro includes a somewhat lame riff on the Declaration of Independence. "Whenever the agenda of government becomes destructive of these ends, it is the right of the people to institute a new governing agenda and set a different course." Of course it is the right of the people to vote out the elected members of our government and thus to attempt to set a different course, whether or not the agenda of the current elected members is destructive of the ends stated in the "Pledge." 
 
But the "Pledge" does not seem to include the certification requirement discussed by Mr. Adler. Here is the closest it seems to come:
 
"We will require each bill moving through Congress to include a clause citing the specific constitutional authority upon which the bill is justified."
 
Again, I've only skimmed it, and there could be a more formal certification requirement hiding somewhere in the "Pledge.".
 
A question for those interested in the Constitution outside the courts: Is a self-imposed requirement that each bill state its constitutional basis helpful in calling Congress to fidelity to the Constitution and in helping voters to evaluate that fidelity? 
 
And a more general con law question that I should know the answer to but don't: If a statute states its constitutional basis (e.g., section 5 of the 14th Am.), will a court reviewing it consider whether Congress had power to enact it under another provision (e.g., the Commerce Clause) to enact the legislation?
 
Mark Scarberry
Pepperdine Univ. School of Law
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