Just asking a few questions
On the First Amendment origins of the investigative powers of Congress, and why the Supreme Court's decision yesterday was about something much bigger than just a rebuke
Americans (rightly) love our First Amendment, and most people are pretty good at naming freedom of speech as one of the rights it preserves. About half can name the freedom of religion, and a third can call out freedom of the press and freedom of assembly. But only 14% of those surveyed in 2021 could name "to petition the Government for a redress of grievances" as one of those enumerated rights.
■ Better knowledge of the Constitution in general would have its own merits. But that right in particular could stand some reaffirmation. It's not so much that the government doesn't respond to citizens' complaints -- Change.org counts on the idea that petitions still matter. But we could stand to see the whole picture a little better than the survey suggests we do.
■ The Constitution is a highly structured and deliberate document. It is no accident that Article I establishes Congress, with a duality of purpose: The House of Representatives to speak for the people, and the Senate to speak for the states as entities in their own right. Too often lost in today's overheated debates over the nature of the Senate is that the states are more organic in their legal nature than the Union itself -- the country was formed as a union of states that pre-existed the Constitution, and Article V and the Tenth Amendment are both quite explicit that the states are the basic unit of government.
■ So when this highly structured document lays out all of the things that Congress is expected to do, including mechanisms for firing anyone in the Executive Branch (through impeachment) and for demanding reports from the executive (through the State of the Union), it ought to be evident that Congress has a sort of primacy among the branches, even if they check and balance one another.
■ With this primacy comes what ought to be an obvious point: If Congress sets the law and supervises its execution, then Congress has the right to ask any questions it deems necessary to make sure that the laws are good and their execution is faithful.
■ Perhaps we would care more about this mechanism if more than 14% of us were fully literate in the right to petition the government. Being able to ask isn't much of a right if the people empowered to do something about it can't conduct their due diligence. That portion of the First Amendment is hollow if Congress is hampered in its efforts to uncover the truth and supervise the people executing the laws that go into place.
■ All of which is to note how important it is that the Supreme Court ordered that former Presidents can't hide from the scrutiny of Congress by claiming privilege. They can't hide from the public (via the investigative powers of the House), nor from the states (via the investigative powers of the Senate).
■ The news is reported with headlines like "In Rebuke to Trump, Supreme Court Allows Release of Jan. 6 Files" in the New York Times, but that framing is wedded far too much to the circumstances of just one incident, as if it's a political horse race. The much more important principle involved is that Congress is (and ought to be) basically unfettered in its ability to ask questions -- because if it is not, then there is very little to the First Amendment right to demand "a redress of grievances". As James Madison wrote in Federalist Paper No. 43, "[A] right implies a remedy; and where else could the remedy be deposited, than where it is deposited by the Constitution?"
■ It's too easy to look at a decision of this magnitude and report it as an institution "rebuking" an individual. It is far more important to see it as the institution of the Supreme Court defending the prerogative (and, indeed, the duty) of Congress to ask questions on behalf of the American public and the states that comprise the Union.