FEIN: Qualified for Congress?

COMMENTARY:

Vacant seats in the United States Senate have been or will be created in Illinois, Delaware and New York because of the actual or impending resignations of President-elect Barack Obama, Vice President-elect Joseph Biden, and Secretary of State-designate Hillary Clinton. (Mr. Obama has already resigned, while Mr. Biden’s and Mrs. Clinton’s resignations are scheduled).

At present, each of the three states empowers the governor alone to make appointments to fill Senate vacancies. In Delaware, Gov. Ruth Ann Minor has announced her intent to replace Mr. Biden with his former aide Ted Kaufman, who is expected to lateral the seat over to Beau Biden - the vice president-elect’s son. In Illinois, Gov. Rod Blagojevich is accused of putting the Senate seat up for auction. New York’s Gov. David Paterson has been prominently courted by Senate hopeful Caroline Kennedy Schlossberg, whose marquee name and pedigree inspires in equal degree envy, obsequiousness and awe.

Slabs of commentary have been spoken or written about the qualifications of the various candidates craving a gubernatorial nod without addressing their fitness to discharge the congressional oath of office: namely to “support and defend the Constitution of the United States.” That oversight is troublesome, if not alarming. It explains why Congress has shrunk to the size of Hans Christian Anderson’s Thumbelina on the constitutional stage. Voters, candidates and members of Congress are thoroughly unschooled in the powers, duties and responsibilities the Constitution assigns to the legislative branch - the first branch. That ignorance or indifference has for decades been regularly exploited by the executive branch to usurp, evade or defy legislative authority without encountering resistance. The result has transformed the republic featuring checks and balances and frugal government into an executive branch empire perpetually at war, cloaked in secrecy, and spending money on economic or social capers with the extravagance of Marie Antoinette.

The typical member elected to the 111th Congress scheduled to convene in January cannot in good faith subscribe to the congressional oath because he or she does not know what the Constitution means or what supporting and defending the Constitution requires a member to do. While it is highly irresponsible for a constitutionally illiterate candidate to seek a House or Senate seat, it is not disqualifying.

The United States Supreme Court held in Powell v. McCormack (1969) that the Constitution prohibits any limitations on qualifications for Congress other than age, residency and citizenship as stipulated in Article I, sections 2 and 3. Alexander Hamilton elaborated at New York’s ratification convention: “[T]he true principle of a republic is that the people should choose whom they please to govern them. Representation is imperfect in proportion as the current popular favor is checked. The great source of free government, popular election, should be perfectly pure and the most unbounded liberty allowed.”

But the Founding Fathers anticipated that voters would demand and congressional candidates would be adorned with a mastery of their constitutional duties and responsibilities. An educated public and candidate wisdom were their north stars for preserving the republic. President George Washington’s first State of the Union address amplified: “Knowledge is in every country the surest basis of public happiness. In one in which the measures of government receive their impressions from the sense of the community as in ours it is proportionately essential.” Directly relevant to congressional candidacies, Thomas Jefferson maintained: “[T]here is a natural aristocracy among men. The grounds of this are virtue and talents. … The natural aristocracy I consider as the most precious gift of nature for the instruction, the trusts, and government of society. … May we not even say that that form of government is the best which provides the most effectually for a pure selection of these natural ariosti into the offices of government?” Accordingly, the First Congress glittered with the likes of James Madison, James Monroe, Oliver Ellsworth, Elbridge Gerry, Roger Sherman, Rufus King and Richard Henry Lee. Read the congressional debates over the Judiciary Act of 1789 and the Bill of Rights. The plunge in congressional erudition and mastery of cardinal constitutional principles from then until now is terrifying. Ignorance and freedom are antonyms.

Voters should demand that candidates for Congress understand and adhere to several cornerstone principles. Congress is vested with the exclusive constitutional authority to initiate war, which cannot be delegated to the president. Congress is empowered to obtain the testimony of every executive branch official and to examine every executive branch document (whether in executive or open session) to inform the people and to deter folly or lawlessness. The power of the purse should never be delegated to the executive, as with the Troubled Asset Relief Program; and, a constitutional amendment should be proposed that would prohibit deficit spending without two-thirds majorities in the House and Senate. Members of Congress represent the people, they are not presidential vassals. Their oaths are to the Constitution, not to political parties. They are not human weather vanes, but are obligated to exercise independent judgment based on superior knowledge and statesmanship.

Candidates who trumpet that they are indistinguishable from the hockey mom or Joe the plumber are not worthy of the office.

Bruce Fein is a constitutional lawyer at Bruce Fein & Associates, Inc. and author of “Constitutional Peril: The Life and Death Struggle for our Constitution and Democracy.”