This essay first appeared in the January 13, 2021 Epoch Times. It is the second in a five-part series on a new agenda for free-market advocates.
Rep. Bennie Thompson (D-Miss.) (above) chairs the House Homeland Security Committee. He disagreed with Senators Ted Cruz (R-Texas) and Josh Hawley (R-Mo.) when they asked for an investigation to ensure that certified slates of presidential electors were, in fact, those chosen by the people. So Thompson wants the government to punish them.
He suggests Cruz and Hawley be placed on the U.S. Department of Homeland Security’s “no fly” list. Ground them!
Thompson’s suggestion is akin to that of an intolerant bully. But it also showed that he’s ignorant of the fundamentals of his job. His remark, like many others issued by federal officials, should tell us this: Stop relying so much on the federal government and start telling state lawmakers to resume their constitutional duties.
This is the second essay in a five-part series explaining a simple agenda for ensuring election integrity and for taking our country back from arrogant and ignorant federal officials.
Thompson has been a member of Congress for 28 years. Yet he apparently is unaware of a portion of the Constitution central to protecting both himself as a member and Congress as an institution. That portion is called the Speech and Debate Clause (Article I, Section 6, Clause 1). It says that “for any Speech or Debate in either House,” members of Congress “shall not be questioned in any other Place.”
Its principal purpose is to shield members of Congress from executive branch retaliation—such as being slapped on a no-fly list.
The Speech and Debate Clause was the product of sad historical experience. Prior to our Founding, the English Crown repeatedly tried to crush opposition in Parliament by punishing its members. For example, in 1576, Queen Elizabeth I confined Peter Wentworth to the Tower of London because he argued on the floor of the House of Commons that the Queen was a trustee for her people. In 1642, Charles I helped bring on the English Civil War by storming into the House, seeking to seize members who had displeased him.
The Speech and Debate Clause prevents that sort of thing from happening to Congress. It obviously is crucial to the preservation of Congress as an independent entity.
Thompson is only the latest in a series of key federal officeholders shown to be clueless about the most basic facts of our political system. Joe Biden—longtime chairman of the Senate Judiciary Committee—recently claimed that for a president to nominate a Supreme Court justice during election season was somehow “unconstitutional.” Sen. Brian Schatz (D-Hawaii) confused a reference to the English origins of our legal system with a racist dog whistle. Rep. John Conyers (D-Mich.)—who headed the House Judiciary Committee for the lifetime of Methuselah—thought the Constitution contained a mysterious “Good and Welfare Clause.” The list goes on.
Now, if these characters don’t understand even the fundamentals of their jobs, how can we expect them to know enough to govern health care? Or education? Or the environment? Or defense, commerce, or any of the other activities they purport to regulate?
To be sure, the Founders did not expect Members of Congress to possess that much knowledge. So the Constitution left governance of most aspects of life to the state legislatures. The Constitution also assigned the state legislatures tasks necessary to keep our political system well calibrated.
Here are the principal jobs the Constitution assigned to state lawmakers:
- Govern the internal policies of their respective states (including areas into which the feds have since intruded, such as health care and education).
- Approve or veto changes in state borders.
- Approve or veto new national enclaves within state boundaries, such as military bases, federal office complexes, and some national parks.
- Regulate congressional elections, subject to limited congressional override.
- Approve or veto proposed constitutional amendments.
- Propose amendments through a meeting of state delegations called a “convention for proposing amendments.”
- Decide how presidential electors are chosen. Last summer, the Supreme Court ruled (pdf) that state legislatures may even tell electors how to vote.
State legislatures may exercise several of these important responsibilities—including choice of electors and their constitutional amendment powers—without their governor’s consent.
Over the years, I’ve found that most state lawmakers generally understand their responsibilities under the state constitutions. But I’ve found that many are unaware of the scope of their duties under the U.S. Constitution. We saw this after the 2020 presidential election: When evidence of vote-counting hijinks surfaced in several states, many lawmakers were caught flatfooted.
In some ways, it’s hard to blame them. Special interests have flooded state lawmakers with disinformation for years—disinformation designed to prevent them from doing their jobs. This is particularly true with respect to legislatures’ constitutional amendment powers. And one reason lawmakers were slow to resolve the 2020 election mess was that people who should know better were telling lawmakers that they couldn’t act without the governor.
If we are to assure electoral integrity and other progress, we must educate state lawmakers about their responsibilities under the U.S. Constitution.
Send them this article and others on the same topic. Look for my forthcoming survey in the University of Pennsylvania Journal of Constitutional Law about the duties the Constitution assigns to non-federal officials, including state lawmakers.
Check out the website of the American Legislative Exchange Council (ALEC). If your state lawmaker is not active in ALEC, encourage him or her to become involved.
Remember: A first step to election integrity and taking back our country is making sure state lawmakers know what their constitutional responsibilities