Comment on The New York Sun: Editorial, The Constitutional Moment

The Constitutional Moment - January 6, 2011 - The New York Sun

By objecting to the call by the GOP in the House to have all legislation cite constitutional authority the NY Times has cast itself on the side of arbitrary government, which is tyranny. My suspicion is that this practice will to a considerable extent inhibit the practice of judges who desire to legislate from the bench. Now they can find penumbras within a law, as Justice Blackmun found within the Constitution itself for Roe v. Wade, and expand a law to cover any policy they find appealing. By having the text specify what constitutional power it relies on the ability to apply it in novel and unexpected situations will be somewhat constrained.

The practice of submitting a document that does not cite it's authority is a fairly new one. At one time nearly every legislator, nearly every judge and nearly every business executive had experience in the military. Usually at the higher levels, such as in Congress, this experience was as an officer. The civilian and military cultures were closer than they are now.

Among the tasks every junior officer is trained on are reading and following instructions and writing formatted messages. Every communication in the military references the authority that supports it. Frequently a chain of these will be listed.

For example an order from a ship's Commanding Officer will note the applicable Naval Regulations, and then the Naval Instruction followed by elaborating, or often merely duplicative, instructions from every layer of the chain of command. Any Directives from other concerned parties will be listed and a copy would be sent to all affected an information copy would be sent to any who could be concerned or who were referred to. Everything done on the ship and every message sent would go over the Commanding Officer's signature. The smallest error would be found and criticized.

The thought that legislation could be produced as a simple act of will, unsupported by the foundations of what makes us a sovereign community, would not have crossed the minds of even the most radical reformers even 20 years ago.