When the House Read the Constitution Aloud, and the Rule That Stayed After 2011

Nothing in the Constitution says that a Congress must be introduced to it. Yet on Thursday, January 6, 2011, the House of Representatives did exactly that, and it did it out loud.

For the first time in the history of the chamber, members took the floor in turn and read the Constitution aloud, beginning with the Preamble and working through the amendments. The press gave it a news cycle. The cynics called it a stunt. I would like to argue that the reading was the lesser achievement of that week, and that the greater one was a short rule, adopted with the new Congress's other rules, that is still in force.

The comeback that produced two acts

Some background first. In the 2010 elections, Republicans gained more than sixty seats in the House of Representatives, the largest swing in that chamber since 1948. A great many of the voters who produced that result were arguing about one question: what is the federal government allowed to do? The health-care law of 2010 had made the question urgent, because it turned on whether Congress could compel individuals to buy a product.

The question had been asked on the record. In October 2009, a reporter asked Speaker Nancy Pelosi where in the Constitution Congress found the authority to require Americans to purchase health insurance, and the Speaker answered, "Are you serious?" I do not hold a single remark against anyone, and a Speaker is entitled to a short answer. But the three words have been quoted ever since because they pointed to something real: Congress had gotten into the habit of legislating without saying where the power came from.

The new majority responded in two ways. One was symbolic and one was structural. The symbolic act was to read the Constitution. The structural act was a change to the standing rules of the House. Let me take them in turn.

January 6, 2011

The reading was a first. Members of both parties took turns, each reading a passage, until the whole text had been read. They read the Constitution as it stands today, which means they skipped passages that later amendments superseded, among them the three-fifths clause on counting slaves. Some Democrats objected to that choice, and the reading also dropped a few words by accident, which a member later read into the Record. I think skipping the superseded text was defensible, though a Constitution that is read with its history is read better.

Consider what the reading did. It forced a roomful of professional legislators, many of whom had not read the full text in years, to hear it from beginning to end in their own voices. It reminded the country that this is a document of words, that the words have meanings, and that the meanings do not change with the political weather. And it announced a standard for the rest of the Congress: if you are going to pass a law, you ought to be able to point to the words that authorize it.

A reading is theater, and I do not say that as an insult. The Founders understood public ritual. But a ritual that is not followed by a rule is a ceremony, and ceremonies fade. That is where the second act comes in.

The rule

On the first day of the 112th Congress, the House adopted its rules package, and the package included an amendment to Rule XII, the rule governing the introduction of bills. Under the amended rule, the sponsor of a public bill or joint resolution must submit a statement citing the specific powers granted to Congress in the Constitution to enact the law proposed. These are called constitutional authority statements, and they are printed in the Congressional Record when the bill is introduced.

The idea is simple, and I regard it as a small measure of constitutional hygiene. A member who introduces a bill has to say, in a sentence, which power in the Constitution authorizes it. There is no fee, no committee and no veto. There is just the requirement that the member say it.

I would put the purpose of the rule in the form of a numbered argument.

1. Congress has only the powers the Constitution gives it. The Constitution is a grant of powers, not a general license.
2. A member who proposes a law is asserting that the power exists. Every bill is, at least implicitly, a claim that Congress may do what the bill says.
3. Asking a member to state the claim makes the claim visible. A claim you must write down can be checked, challenged and, if it is weak, laughed out of the room.
4. Therefore the statement serves the voter. It tells the citizen what the member thinks the Constitution allows, and gives the citizen a standard to hold the member to.

Enumerated powers in Article I, Section 8

To see what a good statement looks like, start with the text it must point to. Article I, Section 1 opens with the words "All legislative Powers herein granted shall be vested in a Congress of the United States." Note the word herein. The powers are those granted in the document, not any others a legislator might wish for. And Article I, Section 8 lists them, in eighteen clauses.

The clauses that do most of the work in modern statements are these:

• Clause 1, the taxing and spending power: "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States."
• Clause 3, the commerce power: "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."
• Clause 18, the necessary and proper clause: "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."

The other fifteen are narrower and more specific: to borrow money, to coin money, to establish post offices, to raise and support armies, to declare war, and so on. Notice what is on the list and what is not. The list contains the power to establish post roads and the power to punish counterfeiting. It does not contain a general power to regulate the family, the school or the farm. When a statement cites only clauses 1, 3 and 18, it is telling you that the bill rests on the three broadest grants, and that is where the interesting arguments take place.

The Tenth Amendment and Federalist 45

The partner to Article I, Section 8 is the Tenth Amendment, adopted in 1791: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Read it as a sentence. Powers that are not delegated to the federal government stay with the states or the people. That is the structure: the federal government has the powers on the list, and the rest are somewhere else. And it is a structure the Framers took pains to explain to a skeptical public. In Federalist 45, James Madison wrote: "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite."

Few and defined. I wish that phrase were on a plaque above the door of every congressional office, because it is the single best description of the constitutional design. Madison was reassuring Americans that the new government would be limited. The authority statement is a modest way of keeping him to his word.

How the Court has measured the power

The clauses are short and the arguments about them are long, so let me give you the three cases that tell most of the story.

In Wickard v. Filburn (1942), the Supreme Court held that Congress could regulate wheat grown by a farmer for use on his own farm, on the theory that in the aggregate such wheat affected the interstate market. That reading made the commerce clause very broad, and for the next half-century the Court rarely said that a federal statute exceeded it.

In United States v. Lopez (1995), the Court struck down a federal law banning guns near schools, holding that it did not regulate commerce or anything substantially affecting it. It was the first time in nearly sixty years that the Court had struck a law on commerce-clause grounds, and it meant that the clause had edges after all.

In National Federation of Independent Business v. Sebelius (2012), the Court held that the individual mandate in the health-care law could not be sustained under the commerce clause or the necessary and proper clause, and upheld it instead as an exercise of the taxing power. Chief Justice Roberts's opinion said, in effect, that the power to regulate commerce presupposes commerce to regulate, and that it does not reach the failure to buy a product. This was exactly the argument that "Are you serious?" had been dismissing.

Take those three together. They show that the question the statement asks is not a formality. Whether Congress had the power was the question on which a major law turned, and a statement that had been drafted honestly would have had to say which of the three clauses the member thought supported it.

The strongest objection, and the answer

Here is the point-by-point part. The strongest criticism of the rule is that the statements became boilerplate.

Members quickly learned that nothing happens if the statement is thin. Many statements simply cite "Article I, Section 8" with no clause, or recite the commerce clause and the necessary and proper clause as a matter of routine. No court reviews them, no rule gives anyone authority to reject a weak one, and nobody's bill has ever been defeated because its authority statement was embarrassing. A rule that nobody enforces is decoration.

I will concede most of that. It is a fair description of many statements, and a conservative who loves the Constitution should not pretend otherwise. The clerk will not accept a bill that arrives without a statement, but nothing reviews whether the statement is any good, and I do not think the rule was designed to.

But the objection proves less than it appears to.

1. A requirement can work through publicity, not penalty. The purpose of the statement is to put a claim on the record. A member who writes "Article I, Section 8" for a bill on a subject that is nowhere near the list has created a public record of a weak claim, and an opponent can quote it.
2. The cost of the rule is near zero, and the benefit is not. It takes a sentence. And the sentence changes the question a staff member asks while drafting: where does the power come from?
3. The remedy for boilerplate is more attention, not less. The statements are public. If citizens and journalists read them, thin statements will be embarrassing. If nobody reads them, the fault is ours.
4. The rule was never meant to be the whole answer. The enforcement of the Constitution belongs to the courts, the voters and the members' own oaths. The statement is a prompt, and a prompt is better than silence.

A fair verdict, then: the statement is a modest tool that has been used modestly. It is not a substitute for a Congress that takes its limits seriously. It is a reminder that the limits exist.

How to read them on Congress.gov

You do not need a law degree to do this. Here is the procedure.

1. Pick a bill. Start with one that your representative sponsored or voted for, or one that is in the news.
2. Go to Congress.gov and search for the bill by number. A House bill's page usually shows or links its constitutional authority statement. If it does not, search the Congressional Record for the day the bill was introduced; the statement is printed there with the bill's entry.
3. Read the clauses cited. Then read the clause itself in the Constitution, which you can do at the Constitution page on this site. Ask whether the clause says what the statement claims.
4. Ask the three questions. Is the clause specific, or is it one of the three broad ones? Does the bill regulate commerce, or something that merely touches it? Is the thing it asks the federal government to do on the list in Article I, Section 8, or is it something the Tenth Amendment leaves to the states and the people?
5. Compare statements across bills. The pattern is often more revealing than a single entry. If every bill from one office cites the same clause, you have learned something about how that office thinks about its power.

The same work can be done with your member's whole record, which Read Your Representative's Voting Record Before You Pick Up the Phone describes, and the list of questions about federal power, Can Congress Do That, Ten Questions About Federal Power Answered, will give you a framework for the harder cases. For the theory behind the limit, see The Nondelegation Doctrine Says Congress Cannot Hand Its Job to Someone Else.

Why this matters to a family

Let me bring it down to a kitchen table. Picture a family in Ohio that has a view about how their school should handle some question, whether it is lunch, curriculum or discipline. Suppose a bill in Washington would settle that question for every school in the country. The family has two options. They can argue about the policy, which is always legitimate. Or they can ask the earlier question: did the Constitution give Congress the power to decide this at all?

That second question is a question about who governs. If the power is on the list, then the family argues in Congress. If it is not, the family argues at the school board and the state capital, where their voice weighs more. The authority statement is a way of finding out which kind of argument you are in. It is the difference between asking a distant legislature to decide and asking your neighbors to.

That is the republic's wager, and it is the one the Founders made. The closer a decision is to the people who live with it, the more accountable the decision-maker, and the more likely the decision is right. It was the argument of Federalist 45, and it was the argument of the new majority in January 2011. Whether the voters of 2028 will hear it again depends on what the next majority builds on the road there; see The Road to 2028 Is a Platform Before It Is a Primary, and the Order Matters. And for the comparison of how comebacks have used their majorities, Five Conservative Comebacks Side by Side, and the Ingredient They All Shared sets the 2010 wave beside four others.

The case in brief

1. The House read the Constitution aloud on January 6, 2011, and that act mattered because words only limit power when someone reads them.
2. The rule adopted with the 112th Congress requires every public bill's sponsor to cite the specific constitutional powers that authorize it, and the statement is printed in the Congressional Record.
3. Article I, Section 8's eighteen clauses and the Tenth Amendment, read with Madison's description in Federalist 45 of powers "few and defined," supply the standard against which every statement should be measured.
4. The statements are often boilerplate and nothing in the rule tests their quality, but publicity is a form of enforcement and the cost of the requirement is a sentence.
5. Citizens can read the statements, test them against the text and use the result to decide whether a question belongs in Congress or closer to home.

What you can do: pick one bill your representative introduced, read its constitutional authority statement and the clause it cites, and send the office a two-line note saying whether you think the clause supports the bill.