Congress and Individual Liberties

Saturday, February 8, 2003
One of the most common complaints I heard during my 34 years in the House was that Congress has too much power - that it is too intrusive and interferes with our freedoms and our lives. The perception is of a massively powerful institution that disrupts and invades lives and undermines individual liberties. 

This is one of the most durable issues in American public life. Since the nation was founded, Americans have debated the proper balance between the rights of individuals to live their own lives and the power of Congress and the President to govern the country and make it secure. My guess is that we will continue to debate this question for as long as we endure. 

That is because the Founders themselves were unsettled on the matter. They wanted Congress to have extensive powers- the power of the purse, the authority to declare war, the sole ability to enact laws. As the forum in which the American people are most directly represented, it clearly needed to balance the power of the presidency. But the Founders were wary of granting it unfettered authority, and in particular the ability to infringe too greatly on individual liberty. As Richard Henry Lee, one of the Virginia signers of the Declaration of Independence, wrote in 1787, as the nation was debating whether it needed an explicit Bill of Rights, “The most express declarations and reservations are necessary to protect the just rights and liberty of mankind from the silent powerful and ever active conspiracy of those who govern." 

Even the Bill of Rights, though, leaves a lot of room for interpretation. Ever since it was enacted we’ve gone back and forth on how far Congress and the President can go in abridging personal freedom, from the Alien and Sedition Acts over 200 years ago, to our ongoing debates over gun control and abortion rights, to the questions being raised today over how far civil liberties can be trimmed in order to fight terrorism. The extent of Congress’s power when it comes to individual rights is no cut-and-dried issue with easy answers. You could argue that debating it is fundamental to our character, a part of our genetic makeup as a nation. 

This is true even though Congress’s power is limited in ways that go well beyond the Bill of Rights. To begin with, the Founders placed explicit restrictions within the body of the Constitution itself. Congress cannot pass ex-post-facto laws, for instance, or pass any bills of attainder- that is, legislation that declares someone guilty of an offense without trial. They also resorted to the less overt, but no less effective, strategy of balancing power among Congress, the President and the judiciary, making congressional action subject both to the President’s veto and the Supreme Court’s rejection. 

Congress is also hemmed in by political reality. It is a large body, with two separate institutions- the House and the Senate- each with its own traditions and temperament. They do not, by nature, see eye to eye, and each has its own crowded agenda of complex issues. Even within one chamber, finding common ground among all the various factions, regional interests, and ideologies can be quite difficult. People often complain about congressional inefficiency, but it is part of what safeguards our rights as citizens. Then, too, forces outside Congress, from lobbyists and political parties to the overall judgment of the American people, constrain its actions. Simply put, once most Americans arrive at a firm opinion about a matter of public policy, particularly regarding their individual liberties, Congress will be hard-pressed to ignore it. Congress may be the most powerful legislative body in the world, but I can tell you from personal experience that nothing is more humbling as a member of Congress than discovering the limitations on its power. 

This is a particularly tricky question when, as now, there are voices in the country at large pressing Congress to weigh in on the administration’s efforts to prevent terrorist acts by broadening federal wiretap authority, expanding the domestic spying capabilities of the FBI, increasing the executive’s power to declare someone an enemy combatant, and the like. Others counter that Congress’s role is simply to go along, but of course, that’s not so. It is one of the American system’s marks of genius that we always have one branch keeping an eye on the other, and one of Congress’s roles is to act on behalf of the American people as the guardian of our guardians: slowing things down when needed, requiring that fewer decisions be made in secret, guarding against unchecked powers. As Justice Brandeis rightly observed, the American people “must look to representative assemblies for the protection of their liberties.” The Founders may have wanted to ensure that Congress did not wield too much power, but they also did not want it to wield too little, which is why oversight of the executive branch is fully as important a congressional role as writing new tax law or appropriating money for new programs. 

Whatever the challenge to individual liberties today from whatever source, members of Congress have to grapple with what’s right for the country at the moment, just as we debated the Bill of Rights, just as we’ve argued over other civil liberties through the centuries. Woodrow Wilson once said, “The country is always aborning,” and in this American ongoing experiment, the question of how far the federal government can go in impinging on individuals’ lives is never resolved, but must be taken up by each generation anew. 

(Lee Hamilton is Director of the Center on Congress at Indiana University. He was a member of the U.S. House of Representatives for 34 years.)