This proposal introduces a mandatory originalist review process for all federal legislation before passage. By requiring proposed laws to undergo an originalist constitutional scrutiny, this act seeks to ensure that new laws adhere to the Constitution’s original meaning and intent, reducing the risk of unconstitutional overreach and strengthening the foundational principles of limited government and individual rights.
Background and Rationale
- Constitutional Drift in Federal Legislation
Over time, Congress has passed laws that extend beyond the Constitution’s explicit scope, often leading to broad interpretations and, at times, controversial expansions of federal power. An originalist review process will safeguard against such expansions, ensuring that legislation is consistent with the Constitution’s original language and framers’ intent. - Originalism as a Guiding Principle
Originalism interprets the Constitution based on its original meaning when it was adopted. This approach provides a clear, stable framework that limits subjective interpretations, fostering a more predictable and uniform legal system. By subjecting laws to originalist review, Congress will be encouraged to respect the boundaries of constitutional authority as originally outlined. - Strengthening Constitutional Accountability
Mandating originalist review will make legislators accountable for ensuring that their proposed laws do not infringe upon individual rights or expand governmental powers beyond constitutional limits. This promotes transparency, encourages rigorous debate, and reduces the likelihood of unconstitutional laws.
Objectives of the Proposal
- Establish Mandatory Originalist Review of All Federal Legislation
- Require that every proposed law undergo an initial originalist constitutional review to determine if it aligns with the framers’ intent and the Constitution’s original meaning.
- Create a Nonpartisan Constitutional Review Office (CRO)
- Establish a specialized office responsible for conducting originalist reviews of all proposed legislation, staffed with constitutional scholars, legal historians, and originalist experts.
- Enhance Legislative Accountability to the Constitution
- Foster an environment of accountability where lawmakers are required to address constitutional concerns raised by originalist scrutiny and make necessary amendments before proceeding to a vote.
Key Components of the Proposal
- Establishment of the Constitutional Review Office (CRO)
- Form a nonpartisan CRO within the Congressional Research Service, staffed by experts in constitutional law and originalist interpretation. This office will have the authority to conduct initial reviews and provide recommendations.
- The CRO will issue a “Constitutional Originalist Report” (COR) for every proposed law, providing an analysis of how the bill aligns or conflicts with the original intent of the Constitution.
- Procedure for Originalist Review
- Upon a bill’s introduction in either chamber, it will be immediately referred to the CRO for originalist review.
- The CRO will analyze the bill and issue a COR within a designated timeframe (e.g., 30 days), assessing:
- The constitutional authority invoked to justify the bill.
- Whether the proposed legislation aligns with the Constitution’s text and framers’ original intent.
- Any historical context or founding documents that support or challenge the bill’s provisions.
- The COR will include a recommendation for or against proceeding with the legislation, based on originalist principles.
- Legislative Action Based on Review Findings
- If the COR finds that the proposed legislation is inconsistent with the Constitution’s original meaning, the bill must be revised or justified by its sponsors before further action.
- Lawmakers may choose to amend the bill to address constitutional concerns raised by the COR or to submit additional supporting arguments that demonstrate compatibility with the original Constitution.
- Transparency and Public Reporting
- All CORs will be made publicly available on a dedicated website for citizen review, enhancing transparency and enabling public scrutiny of legislative proposals.
- Lawmakers will be required to respond in writing to any constitutional concerns highlighted by the COR, which will also be published for public access.
- Judicial Review as a Backstop
- Legislation that is passed without adherence to COR recommendations may be subject to expedited judicial review if challenged. Courts may consider the COR as persuasive evidence in assessing a law’s constitutionality.
- Incentivizing Compliance and Maintaining Integrity
- Provide incentives for lawmakers to comply with CRO findings by establishing an internal scoring system that publicly grades legislation on constitutional adherence.
- Penalize persistent disregard for CRO recommendations by placing limits on the consideration of future bills from legislators who frequently propose unconstitutional legislation, as determined by the CRO.
Expected Outcomes
- Greater Constitutional Integrity and Legislative Restraint
Implementing originalist review will likely lead to more constitutionally sound legislation, discouraging lawmakers from proposing or passing bills that exceed constitutional limits. - Enhanced Public Trust in Government
By making the review process transparent and involving constitutional experts, citizens can trust that laws are rigorously evaluated for adherence to the Constitution, promoting trust in government. - Reduction in Judicial Challenges to Legislation
This originalist review is expected to decrease the number of laws subject to judicial challenge on constitutional grounds, easing the burden on courts and reducing the frequency of overturned legislation. - Increased Awareness of Constitutional Boundaries
Lawmakers will develop a deeper understanding of the Constitution’s original meaning, leading to legislative proposals that better respect the principles of limited government and individual liberty.