Happy Constitution Day!
Today we celebrate the 225th anniversary of the signing of our federal Constitution. On September 17, 1787, after several months of meetings and debates in Philadelphia, 39 delegates to the Federal Convention signed the document which the states subsequently ratified. This momentous occasion ushered in a new era and a new brand of constitutional government. Prior to its adoption, the Articles of Confederation governed our young nation as it freed itself from British rule and established its own independence. Under the Articles, each state maintained its sovereignty as free and independent so that the “United States,” as such, was more like “an alliance, a multilateral treaty of sovereign nation-states.” While this system appeased deep-seated state loyalties thereby providing the necessary political expediency to obtain ratification, it soon proved unworkable. The states exercised their power to impose what were essentially economic sanctions against one another, and they got away with it on account of a very weak central government. By 1786, it became obvious that the system wasn’t working and by 1787 the Philadelphia delegates undertook to write an entirely new Constitution that created a much more powerful, centralized federal government endowed with the power to control state abuses.
But that Constitution also placed careful limits on the exercise of this new federal power both explicitly and implicitly through a sophisticated power-sharing scheme. For example, the Constitution divides power at the federal level among the legislative, executive and judicial branches of government so that each acts as a check against the others. In the Legislative branch, the Constitution mandates a system of bicameralism, requiring all new legislation to pass through two separate elected bodies—the House and the Senate—before becoming law. Moreover, political control is also divided vertically between the states and the federal government which provides another form of political check on the exercise of power.
Reflecting on this complex constitutional system of government our forefathers established over 200 years ago reinforces our resolve to defend that system in the courts. For example, in our Obamacare Litigation, we are seeking to file an amended complaint pointing out Congress’ gross violation of the Constitution’s Origination Clause. Contained in Article I, Section 7, this clause requires that “[a]ll Bills for raising Revenue shall originate in the House of Representatives.” In other words, any bill to raise taxes must start in the House. But the Obamacare law—which the Supreme Court found was only valid as an exercise of Congress’ taxing power—started in the Senate in direct contravention of this explicit constitutional mandate. Why does this matter? For one thing, as PLF Principal Attorney Timothy Sandefur points out: “The founding fathers wrote the Origination Clause because they were deeply suspicious of government’s power to tax. Knowing how liable it was to be abused, they wanted that power kept as close to the voters as possible.” But on a broader level, a written constitution—like ours—can only serve its purpose if people abide by its precepts. And that purpose—of providing a necessarily strong federal government that is still one of limited and enumerated powers—is certainly worth preserving.
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