Welcome to the August political doldrums. Let’s grasp the moment to lay out how to fix some of America’s political maladies.
When Congress returns from recess it will be preoccupied with a few pieces of pressing, but not interesting, legislation. Then our representatives, and a third of our senators, will head back to the hustings to campaign for reelection. And, in a few cases, de-election.
With Congress out of session then preoccupied with electioneering we win a few month’s reprieve from Gideon’s Law (named for Judge Gideon Tucker), coined in 1866 but an eternal verity: “No man's life, liberty or property are safe while the Legislature is in session.”
Three months’ reprieve every two years is not enough. There is a better way.
Let’s go all out. Let’s use what’s in the Constitution.
Before an elected legislator is allowed to be seated to begin casting his or her votes and other forms of official mayhem he or she must take an oath of office “prescribed in Title 5, Section 3331 of the United States Code. It reads:
“I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion, and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”
God help us, such an oath is prescribed by the Constitution itself, Article VI, section 3:“The Senators and Representatives … shall be bound by Oath or Affirmation, to support this Constitution….” How many know what they are swearing to?
Let’s find out. Article I, section 5 of the Constitution provides: “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members. ...”
It makes a mockery of the oath of office to seat a member based upon an Oath or Affirmation to support this Constitution unless the elected official had at least a working knowledge of what the Constitution says. And, alas, it is obvious that too many of our elected officials lack even a working knowledge thereof.
So, my modest proposal, which I first propounded in vain at Forbes in 2017: “Amend the … rules to require that before the administration of the Oath of Office the [legislator]-elect must pass a test certifying solid knowledge of the contents of the Constitution.”
Alas, I made the tactical mistake of directing my advice to Sen. Ted Cruz, R-Texas. He is crippled by his propensity to think like a lawyer.
That said, it’s still a fine idea. As I then wrote:
“[A] High School Equivalency grasp of America’s fundamental charter is not an excessive request of those swearing (or affirming) to support and defend it. A higher standard of mastery would be appropriate. The Constitution spells out the duties, powers, and limitations of powers of the lawmakers we elect.
“It contains their job description! It really isn’t excessive to ask that our officials demonstrate any first-year law student’s knowledge of the most basic book of rules of American government.
“How should such a test be graded? Should this be a pass-fail exam or assigned a letter grade? Personally, I would relish seeing certain Senators who received a D thereafter live down some ribbing from their more erudite colleagues.
“And explain their D to the voters in the next election.
“It would be even more interesting if such pre-test were administered publicly during the campaign. Preferably this would be broadcast by a local access cable channel, highlights surely would be featured on the local evening news.”
“One can imagine objections to imposing the requirement of passing such a test as undemocratic. The great newspaperman H.L. Mencken, no friend of democracy, would have relished this. As he wrote in The Smart Set: 'Democracy is the theory that the common people know what they want, and deserve to get it good and hard.'
“One of the things the newly tutored might be interested to discover is that nowhere in the Constitution does the concept of democracy appear. America was, and is, a republic. Period.
“As a … lawyer with very long engagement with the Constitution, I know what’s in there.
“Do you? Does your elected Representative? Does your Senator? (Does your President?)
“Shouldn’t we know?”
Requiring our legislators to pass a basic test as to what’s in the Constitution, very much including the Bill of Rights, before getting sworn in is likely to improve our government.
Would it solve our every problem? Of course not.
Yet it would cost nothing and solve some.
It’s a modest proposal.
Ralph Benko, co-author of "The Capitalist Manifesto" and chairman and co-founder of "The Capitalist League," is the founder of The Prosperity Caucus and is an original Kemp-era member of the Supply-Side revolution that propelled the Dow from 814 to its current heights and world GDP from $11T to $94T. Read Ralph Benko's reports — More Here.
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