I cannot think of many instances where I have been overly impressed with anything French, aside from cuisine and wine. The French have not been particularly ardent allies of the United States, despite being twice rescued from humiliating wartime defeats by American soldiers in the past century.

However, there is one aspect of the French government which we would do well to emulate. There is an institution in the French government known as the Constitutional Council, whose purpose is to rule on the constitutionality of all legislation passed by the French Parliament BEFORE it is signed into law by the President.

What a refreshing concept. Imagine reviewing laws for constitutionality prior to them becoming the law of the land. Under the American system, the Supreme Court reviews legislation that has been passed by the Congress and signed into law by the President only after it has been challenged in court, and only after it has been ruled upon by lower courts and appealed to the Supreme Court. This system has functioned fairly well throughout our history, but the time may be coming to re-think the issue.

The propriety of judicial review of legislation already passed into law assumes that a constitutionally astute congress only considers legislation that is constitutional. It further assumes that a similarly astute president would not sign into law any bill he considered to be unconstitutional. However, the passage of the Bipartisan Campaign Reform Act of 2002, also known as the McCain-Feingold Campaign Finance Reform, and its eventual approval by the Supreme Court despite obvious First Amendment issues gives the lie to those assumptions. Congressman John Shadegg (R-AZ) perennially attempts to introduce legislation, the Enumerated Powers Act, requiring that each bill that comes before the U.S. Congress cite the provision of the Constitution that grants the federal government the power to execute the bill’s provisions. Congress has so far refused to pass Shadegg’s bill.

With the executive branch now owning both the automobile industry and the banking industry of this country, and in the process of grabbing the entire health care industry, perhaps it is time to introduce the concept of constitutional review of legislation before it becomes law.

Imagine some responsible body actually placing the proposed Health Care Reform Act up beside Articles I and II of the Constitution in an attempt to identify the actual enumerated power granted by the document that provides the congress or the president the power to control the health care of every citizen of the nation.

No such power is authorized by the Constitution, unless one attempts to pervert the General Welfare clause of Article I, Section 8, which grants congress the power to …”provide for the common defense and general welfare of the United States.” But to do so would be to ignore the words of Thomas Jefferson, who addressed the General Welfare clause by saying:

“They are not to do anything they please to provide for the general welfare.... [G]iving a distinct and independent power to do any act they please which may be good for the Union, would render all the preceding and subsequent enumerations of power completely useless. It would reduce the whole instrument to a single phrase, that of instituting a Congress with power to do whatever would be for the good of the United States; and, as they would be the sole judges of the good or evil, it would be also a power to do whatever evil they please."

In the case of this congress and this president, it would be nice if someone would remind them of their oaths to defend and protect the Constitution, and of the need for constitutional authorization for their actions. This could be done by a Constitutional Council if we had such a thing. Or it could be done by an active and interested press, who just might be interested in the government’s willingness to adhere to the document which guarantees its own right to exist.