Zywicki: Political Bifurcation Since the New Deal

While historically all three branches of government have taken seriously their obligation to consider the constitutionality of pending legislation, that practice has atrophied since the New Deal according to Professor Todd Zywicki, whose comments came in a Congressional Quarterly article examining recent efforts by Republican lawmakers to stress their reliance on the nation's Constitution.

"Since the New Deal, we've seen this bifurcation where politicians vote for something because they think it's a good idea, and they leave it up to the courts to decide whether it's constitutional or not," said Zywicki.

The article attributes recent attention-grabbing efforts by Republican leaders to show they take the Constitution seriously to an effort to reach out to the tea party constituency, who place a particular value on a strict interpretation of the government's constitutional powers.

"We'll find out if this is just a fad or pure rhetoric, or whether some of these guys are going to take a principled stand on this," Zywicki commented.

Republicans Turn to Constitutionalism to Rein in Authority, Congressional Quarterly, January 8, 2011. By Seth Stern.

"If anything binds the decentralized and diffused tea party movement together, it is a shared sense that congressional Democrats and the White House ignored what tea partiers say is the Constitution's strictly limited understanding of the federal government's powers when lawmakers rushed to bail out big business and overhaul the nation's health care system. But the trend has been decades in the making, they say, building ever since the New Deal, when lawmakers decided that the relevant question to ask when legislating was not whether there was anything in the Constitution that authorized them to act, but whether there was anything in it to stop them.

"Tea party members embraced the Constitution as their lodestar and most potent symbol. They handed out copies and read the Constitution aloud at their rallies while memorizing its provisions and studying them at home in small groups.

"Republican candidates used references to the Constitution as shorthand to assure tea party voters that they shared the same values."