"Fraught With Evil," Said the Supreme Court

09/26/2011 03:49 pm ET | Updated Nov 26, 2011

When I was up in DC a week ago, visiting the Floor of the House, I asked one Democratic member what she thought about the Republicans being in charge. Her answer was interesting to me: "They want to do all these things that are unconstitutional. It's as though they've never heard of the Constitution."

I really hadn't thought of it that way. Cruel? Yes. Bigoted? Yes. But unconstitutional?

I realized that she probably was referring to this gross obsession over what the federal deficit might or might not be in the year 2021, ten years from now.

Here is a simple fact, which seems to have eluded this tea-infused Congress. One Congress cannot dictate to any other Congress. Particularly when it comes to taxing and spending. So all of this gnashing of teeth and rending of garments over what the federal deficit might be in ten years is utterly -- utterly -- pointless. It's like trying to amend the law of gravity.

Under Article I, Section 7 of our Constitution, each Congress has the same right as another other Congress to legislate. This includes "raising Revenue" and "Appropriation of Money." (The Founding Fathers were pretty wacky when it came to initial caps, weren't they?) So our 112th Congress can "pass a Bill" setting the federal deficit for this year and next year, but that's about it. Anything that goes beyond the first week of January, 2013, when the 113th Congress will be sworn in, is subject to change by that Congress, and every subsequent Congress.

The Constitution also has this to say on the subject, in Article I, Section 8: "no Appropriation of Money [to raise and support Armies] shall be for a longer Term of two Years." (Which tells us precisely what the Founding Fathers would have thought about a 10-year war in Afghanistan and an 8-year war in Iraq, but that is another story.)

Way back in 1879, i.e., long before the U.S. Supreme Court became an extrusion of the Republican Party, the Supreme Court also weighed in, in this holding:

Every succeeding legislature possesses the same jurisdiction and power with respect to [public interests] as its predecessors. The latter have the same power of repeal and modification which the former had of enactment, neither more nor less. All occupy, in this respect, a footing of perfect equality. This must necessarily be so in the nature of things. It is vital to the public welfare that each one should be able at all times to do whatever the varying circumstances and present exigencies touching the subject involved may require. A different result would be fraught with evil.

Newton v. Commissioners, 100 U.S. 548, 559 (1879).

Politically, all this teabag deficit-mongering is a weapon on mass distraction. But constitutionally, it's a farce.

In a way, this shouldn't surprise anyone. They wave the Tenth Amendment around as if it were a magic wand.

They want to repeal the Fourteenth Amendment because they don't like the idea that everyone born in America is American; in other words, they want the sins of the fathers to descend on the sons. They want to insert bookkeeping into the Constitution (the so-called "Balanced Budget Amendment"), but take a woman's right to choose out of it. And, of course, their hand-picked, litmus-tested, original-intented judges have thrown out over a century of constitutional precedent (e.g.,Citizens United) whenever they've felt like it.

Instead of defiling the Constitution, I think that we should concentrate on the things that matter in our lives:




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Alan Grayson