Former Senator Russ Feingold has posted this draft on SSRN. Here is the abstract:
Most scholarly attention on constitutional interpretation is focused on the judicial branch and the role of the judiciary in our system of separation of powers. Nonetheless constitutional interpretation should not take place solely in the courts. Rather, history suggests our Framers envisioned that members of Congress, as well as the President and the Courts, would have an independent and important role to play in interpreting our Constitution. Yet this obligation has eroded such that House Speaker John Boehner, with the support of the Tea Party and his House colleagues, called for a “sea change” in the way the House of Representatives operates, with “a closer adherence to the U.S. Constitution,” and amended House Rule XII to require members of Congress who introduce bills or joint resolutions to provide a Constitutional Authority Statement (CAS) outlining Congress’s authority to adopt the bill or joint resolution.
This Essay identifies, explains, and critically explores four key deficiencies in House’s Rule in light of the history of constitutional interpretation in Congress, the incentives of members of Congress, and the realities of the legislative process. While the House’s Rule represents an important step in improving the quality of constitutional deliberation in Congress, it is unnecessarily bureaucratic, underinclusive, fails to capture the importance of constitutional interpretation for all members of Congress, not just the introducers of legislation; and most importantly, reflects a severely limited notion of what constitutional issues need to be considered in voting on legislation by completely ignoring constitutional infirmities involving individual rights, civil liberties, and any other potential constitutional issue aside from merely Congress’s authority.
To address these concerns, the Essay offers a proposed rule for adoption in the United States Senate. The Proposed Rule requires a Constitutional Authority Statement for all legislation — not just bills or joint resolutions — but only when that legislation will actually receive a vote. Furthermore, the Proposed Rule makes it clear that all members of Congress — not just the introducer — have an individual obligation to consider the constitutionality of legislation on which they vote. Finally, the Proposed Senate Rule requires a CAS include not just information about Congress’s Article I authority to enact a bill, but also address other possible countervailing constitutional issues like individual liberties.