»  National Review Online

March 18th, 2004

  Congress: A Modest Proposal


OK, I have almost made it through my second year as a citizen of this splendid Republic. I think I know the ropes, now, and am au fait with all the essentials of being a Yankee Doodle Dandy. I live in a quiet suburb, in a detached house with a Stars and Stripes hanging proudly by the door. I decorate my garden with lights at Christmas, and do not recognize Boxing Day. (Nor Guy Fawkes Night, Shrove Tuesday, or Whitsun.) I vote conscientiously, according to some rather simple rules I have worked out: against any issue of any bond, against any person I know to belong, or suspect of belonging, to any public-employee union, against any member of any party that is not Republican or obviously conservative, etc. I understand the ground-rule double and know the difference between a sinker and a slider. I own two fine handguns, which I practice with at the town range when opportunity permits. I am the proud father of two American kids, both of whom can recite the Pledge of Allegiance. Each of my two ordinary American family cars could accommodate an ordinary English family car in its boot, which I know to call the "trunk." I refer to an aubergine as an "eggplant," courgettes as "zucchini," and biscuits as "cookies"; I call a cock a "rooster," a purse a "pocketbook," and a tap a "faucet."**  Afflicted with any bodily ailment or injury I consult an attorney as well as, and in some cases before, seeing a doctor. I save diligently so that my kids can go to universities where they will be taught to hate their ancestors (at least the white ones) and accord proper "dignity" and "respect" to people who prefer small molluscs as sex partners. I …

Er, wait a minute, I am trending negative there. Suffice it to say that I consider myself thoroughly Americanized. In some respects, in fact, I may have gone too far: I have read "Snow-Bound" and "The Courtship of Miles Standish" all the way through, and am the only person you ever heard of that can sing the second verse of the national anthem.

There is only one thing I don't quite understand about my new country: What the hell use is the U.S. Congress?

Now, I know, of course, what the Congress is supposed to be for. Article I, Section 8 of the U.S. Constitution spells it out. "To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States … etc., etc., etc." The problem is, Congress either isn't doing the things it's supposed to do, or is doing them so excruciatingly badly it would be better they were not done at all. Take a look.

•  "To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water."

I confess I am not sure about the Letters of Marque and Reprisal — possibly the assembled Senators and Representatives granted a few while I was busy providing for the day that was passing over me; but when was the last time they plucked up the courage to declare War? (Love those capitalized substantives!) Before I was born, that's when, and I am no spring chicken. Oh, we have fought plenty of wars since then, but Congress never declared any. Probably they felt that would be a bit more responsibility than they could handle. After all, if Congress were to declare War, then the ladies and gentlemen who comprise Congress would be collectively responsible for the outcome of the war, wouldn't they? Eeeeek! Best leave it to the Executive.

•  "To establish an uniform Rule of Naturalization …"

In other words, to set some clear standards for who should, and who should not, become a citizen. How archaic! In this breezy modern world of globalization and open borders, all those smelly old prejudices about foreigners (nativism! racism! anti-immigrant!) have been swept away long since. All you have to do to become a citizen is just get here … then wait for the next Presidential amnesty. What's Congress got to do with it?

•  "To define and punish Piracies and Felonies committed on the High Seas, and Offenses against the Law of Nations."

So, let's see: If a rogue foreign nation were to force down one of our planes over international waters, strip it of all its equipment and fittings, and impound the crew, then Congress is supposed to punish that nation? As they say in Beijing: Ha ha ha ha ha ha ha!

Come to think of it, look at that very first responsibility of the U.S. Congress:

•  "To lay and collect Taxes, Duties, Imposts and Excises …"

Here the Congress has been not merely active, but a darn sight too active. The federal tax code currently contains 55,000 pages, and is expanding at a rate of 50 pages a day. Does anyone actually understand all that verbiage? No, of course not. The federal tax code is not there to be understood. It is there to provide breaks and relief and handouts to every group of twenty citizens who can squawk loud enough to get a Congressperson's attention. It is, in short, a joke. A flat tax or a consumption tax would make far more sense, in both equity and efficiency; but then Congresspersons would not be able to spend 100 percent of their time being wined and dined by the Aardvark Breeders Association of America and Black Lesbian Rock-Climbers for Peace. They would have to occupy themselves with stuff like declaring War or controlling the nation's borders. Where would be the fun in that? Where would be the profit?

Article I, Section 8 doesn't list all of Congress's responsibilities. Check out Article III, Section 2, for example, which contains this little nugget:

•  "In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."

(My italics.) So in a Case not "affecting Ambassadors" etc. — let's say, oh, a case in which some citizens have chosen to dispute the ancient and customary definition of marriage — the supreme Court has jurisdiction only if the Congress has not declared that particular Case an Exception under the aforementioned Article, and if Congress has made explicit Regulations declaring that the Court does indeed have such jurisdiction. Hmmm. So this issue I have been reading so much about, of renegade federal judges legislating from the bench, is really not an issue at all, since Congress could just forbid them to take the relevant Cases! Does anyone in Congress know this? Why don't they act on it? See above under "declaration of War."

It is my pride and honor to be a citizen of the same state as Judge Gideon Tucker, the man who said, back in 1866, that: "No man's life, liberty or property is safe while the Legislature is in session." I suppose he was talking about the New York State legislature, in which case he was not at all mistaken; but his words apply equally well, in fact a fortiori, to the U.S. Congress and those who make their living there. The mystery is, that 138 years after Judge Tucker enunciated this obvious truth, we still put up with this expensive, extravagant, purposeless nuisance.

Hold on there, Derb, I hear you murmuring. Aren't you going a bit too far here? After all, Congress does make laws, you know. And we do need laws, don't we?

We certainly do. However, you should entertain the possibility that we already have all the laws we need, and that the Republic would probably get along just fine if no new laws were passed for a few years. Twenty years ago we had several hundred less federal laws than we have now. I suppose that in some ways we were worse off in 1984; but things weren't bad.

And just try looking closely at the laws the Congress actually passes. Let's take the best-publicized legislative success of the Clinton administration, the passing of the North American Free Trade Agreement by both houses of Congress in 1993. Has it actually done us any good? I have been trying to find out, and believe me, it ain't easy. It is clear, at any rate, that it hasn't done Mexico any good; wages are lower in Mexico now, by comparison with U.S. wages, than they were in 1994! Yet this was a big selling point for the Agreement: lift up Mexico, and we'll have no illegal-immigration problem. Sorry, that didn't work.

Let's try another one: the No Child Left Behind Act. This may be the stupidest piece of legislation ever to crawl down from Capitol Hill. In effect, it legislates that the earth is flat. Dan Seligman exposed the whole silly thing in a recent Forbes article:

And yet the law's main problem continues to be unrepresented in the news stories. The problem is that some students are not smart enough to do well on tests.

The law also states, insanely, that by 2014 all American students must be "proficient" in reading and math. Any school at which this doesn't happen will suffer severe penalties, up to and including a takeover by the state. Yet the shape of the bell curve guarantees that most schools will fail. No amount of accountability, incentives and superduper teaching can possibly get all the kids in any sizable school up to 100 percent proficiency by 2014. The act supported by all those hardheaded businessmen is utterly utopian.

Et cetera, et cetera, et read-it-and-weep cetera.

What else has Congress done for us recently? The Defense of Marriage Act? Everyone understands that this is a waste of paper. The matter it was supposed to resolve will be decided by the courts, or by a Constitutional Amendment. The law is, like the body that passed it, irrelevant. This year's Medicaid bill? Uh-huh. Any year's budget resolution? Oh, right.

Congress? Abolish it! I have been on the premises. If you cleared out all the time-servers, cranks, bores, boors, freaks, fools, paid agents of foreign powers, and front men for the trial lawyers, public-employee unions, fruit growers, oil companies, and Mideast royal families, you could turn the Capitol building into a very fine suite of racketball courts and indoor shooting ranges, with enough space left over for some bowling lanes and perhaps even a decent-sized swimming pool. What are we waiting for? All the governing of our country is being done by judges and federal bureaucrats anyway. For what, exactly, do we need Congress?

** A key difference between British and American English is that the latter was, at some point in the 18th or 19th century, stripped of any word that might conceivably be taken to refer to any embarrassing body part, or act of intimacy. I grew up in England saying "behind the house," but I have now trained myself to say "back of …," like a good American. The "rocks" my children throw at any available can are the same size as the "stones" I used to throw when I was their age — but "stones" is used in the Bible to refer to male gonads. (Which is also why I now give my weight as "180 pounds" instead of "13 stone.") For "tap" (though spelled "tup"), see Othello I.i. One of the principal landmarks in my home town was an inn called The Cock — I used to ride a bus that had that destination proudly displayed on the front … , and so on. I am fine with all this bowdlerization, have got quite used to it, and in fact, given the state of our popular culture, would welcome a return of the honest American prudery that brought it about.