Denver Bar Association
March 2011
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Republicans Rediscover the Constitution—Are They Sure About That?

by Doug McQuiston



he results of last November’s midterm elections were epic. Nancy Pelosi and her Gulfstream V are out. House Speaker John Boehner and his commercial coach flights back to Ohio are in. Plus ça change

Last November, our runaway government ran smack into the same wall it has seen before: the voters and their fear of a government big enough to take everything they have. Most of the new GOP Congress members rode to power on the strength of a conservative, Tea Party friendly message of less government, lower spending, and a return to “constitutional first principles.” Many actually seem like true believers, but time will tell.

At least they’re starting to ask the right question, one that has fallen out of favor over the last 60 years or so: “Exactly where in the Constitution did we, the People, grant the federal government the power to do that?!” New House rules will require all proposed legislation to contain a detailed citation to its precise constitutional authority.

But this new respect for the Constitution, like everything else in politics, has two sides. The overreaching and excessive government spending and growth that spawned the Tea Party cannot be laid solely at the foot of the Democratic Party. Indeed, most of the biggest power-grabs (and the freest spending), in the previous two administrations were Republican in origin. The Defense of Marriage Act (DOMA); No Child Left Behind (NCLB); the Orwellian Department of Homeland Security (DHS), whose name even now gives me the creeps; Medicare prescription drug coverage; federally guaranteed, ridiculously easy mortgage money shoveled into the economy by federally backed Fannie Mae and Freddie Mac; cozy, rent-seeking deals with Wall Street investment bankers and Texas oilmen; government subsidies in farming, manufacturing, and natural resources; and the TARP bank bailout were all GOP-sponsored bad ideas. I heard no mention then about the limits of constitutional power before any of these ideas became law.

In the “Through the Looking Glass” world that was the last two decades, it was Democrat Bill Clinton who said “the era of Big Government is over” and Republican George W. Bush who set records for government spending and created the largest, least efficient, and most alarmingly freedom-threatening agency ever to exist in America: DHS.

Of course, the Democrats aren’t blameless for that behemoth, either, since DHS was their idea, proposed as a way to look like they were “doing something” after the 9/11 attacks. The truth is that both sides of the aisle in Congress have seemed to have lost their copies of the Constitution over the last two decades.

That’s why I am particularly happy to see that the GOP finally dusted off its copies of the Constitution, and gave it a quick read during the campaign. Maybe we will see legislation this term repealing DOMA, abolishing DHS, retiring NCLB, and reversing the other power-grabs of the last Republican presidency.

Or, maybe not.

You see, like everything else in politics, what started out as a slogan to attract Tea Party voters—with their “Don’t Tread on Me” Gadsden flags and “We Want our Constitution Back” signs—must now make the hard turn into a governing philosophy. Those Tea Party-backed candidates could always count on rousing applause when they told their crowds that the Constitution does not grant Congress the power to make us buy health insurance; but what would we hear if they told their next town hall audience about some of the other “core principles” of limited federal government held by our Founders? Perhaps our incoming Congress members should dust off another piece of writing, The Federalist Papers.

They should be careful, though. Let’s imagine what that might look like. Here’s our earnest young freshman GOP Congressman, striding to the front of the room at the next town hall meeting, his copy of the Federalist Papers under his right arm: “The people, through their Constitution, did not delegate to the federal government the power to ban handguns or mandate the purchase of health insurance!” He pauses, to bask in the applause. “But I just read the Federalist Papers—I now know that it also granted no power to Congress to mandate prayers in state public schools!” We hear the sound of crickets chirping, and nervous shifting in seats.

Undaunted, he continues: “The Constitution does not give the federal government the power to use taxpayer money to favor one business or industry over another, or pick winners and losers in the private sector! Nor does it empower us to enact a federal ban on marriage between persons of the same gender, control the states’ exercise of police power in regulation of abortion practices, or pay farmers not to grow corn!” Duck, Congressman, they’re throwing things at you!

As the Tea Party gears up for the 2012 presidential race and their GOP Congress members begin crafting the legislation they will offer in this new Congressional term, they should all be careful what they wish for. The Constitution, they have rediscovered, was indeed a limited delegation of very circumscribed power from the states and the people at large to the federal government. Our Founders distrusted the national government, and wanted to keep it small enough to be controlled.

That limit applies to both sides of the political spectrum. If the GOP pushes for full repeal of the Obama health care reform legislation on constitutional grounds, then it must be equally mindful that the old red-meat issues they trot out every election cycle, such as prayer in schools, gay marriage bans, federal prohibition of certain abortion practices, and federal grain or farm subsidies, also are beyond the reach of the limited powers granted to the federal government.

So, what will it be? Will I hear GOP presidential candidates in local forums telling their audiences that the federal government has no power to meddle in state definitions of marriage, or state laws governing abortion practices? Will I see GOP candidates who favor a robust interpretation of the Second Amendment also advocate dismantling the Department of Homeland Security on the grounds that it threatens the very freedoms and sovereignty the Constitution reserves to the people?

I’m not holding my breath. D

Doug McQuiston wrote “Election 2010—The Post-Game Show” for The Docket in December. You can read McQuiston’s and other Docket articles at

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