An interesting yet sad argument has been brewing lately in the United States, especially with the resurgence of conservatism across the country. In “Oh, That Weird Constitution!”, Jonah Goldberg shows that today it seems like many people believe that the constitutionality of laws should only be for the courts to decide. In believing so, they are critical of Republican candidates’ pledge to either vote only for bills they believe are Constitutional or to enact a requirement for every bill to state where in the Constitution it derives its authority. Personally, I think those are great ideas, ideas that I believe our Founding Fathers intended for ALL branches of the government to implement without needing them to be expressly stated.
It’s amazing that today some people don’t think that. Dahlia Lithwick, a former law clerk and “expert” on the Supreme Court said, regarding plans by Republican senate nominee Christine O’Donnell of Delaware to judge the constitutionality of any law before voting for it:
“How weird is that, I thought. Isn’t it a court’s job to determine whether or not something is, in fact, constitutional? And isn’t that sort of provided for in, well, the Constitution?”
Even more, Ben Adler, of the now nearly worthless Newsweek magazine, stated:
“We have a mechanism for assessing the constitutionality of legislation, which is the independent judiciary, an extraconstitutional attempt to limit the powers of Congress is dangerous even as a mere suggestion, and it constitutes an encroachment on the judiciary.”
I don’t even know where to begin breaking down such a ludicrous statement. The judiciary’s purpose is not to decide on whether or not a piece of legislation is Constitutional. In fact, the first time the Supreme Court did such a thing was in the historic Marbury v. Madison ruling in 1803 which established the precedent of judicial review. In fact, some people, including President Thomas Jefferson, thought the Supreme Court had overstepped its Constitutional boundaries when it handed down its ruling on the case. While I disagree with President Jefferson, I do understand where he is coming from. Since Art. III, Sec. II of the United States Constitution does not explicitly say the courts can decide on whether or not a law is Constitution or not. Read for yourself:
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to all Cases affecting Ambassadors, other public Ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party;–to Controversies between two or more States;– between a State and Citizens of another State,–between Citizens of different States,–between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
While it does not expressly say the counts can decide on issues of constitutionality, it does say their power shall extend to laws of the United States. If they have the power to decide on issues involving laws, it seems to me to be a logical extension for them to decide on the constitutionality of those laws.
All that being said, I want to jump back to the heart of the argument people were making in the piece, that only the courts should decide on whether or not a bill is Constitution. I think them saying such a thing is wholly ignorant our Constitution, what the Founders built, and of the oaths that both Congress and the President take. If the courts were to be the sole aritor of constitutionality, why do members of Congress state in their oath of office that they “will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same”? And why does the President swear, as part of his oath that he “will to the best of my ability, preserve, protect, and defend the Constitution of the United States”?
Doesn’t it follow that if they will either “support and defend the Constitution” or “preserve, protect, and defend the Constitution” that they would have to follow it in the performance of their jobs, meaning passing legislation or signing legislation into law so long as it conforms to the enumerated powers of the Constitution? It seems to me to be pretty damn clear that it does. The Court is supposed to be a safeguard, the absolute last line of defense in terms of judging whether or not a law is Constitutional, not the first. It should never come to it that a law’s constitutionality should ever have to be judged by the courts because 1. Congress should never have passed anything that was unconstitutional and 2. the President should never have signed anything that was unconstitutional. Both of branches used to always consider the Constitution and whether or not they were granted the power to do what they were attempting to do. The original story gives some examples of those cases. To claim that the Courts should be the sole judge is an absolute affront to the system our Founders created.
The people who claim this are a danger to our Constitutional system because, it seems to me, they want Congress and the President to just pass and sign bills into law without even consulting the Constitution in hopes that they’ll never get caught passing things that are unconstitutional or that these bills will never be challenged in the courts. Our Constitution was meant to be followed, not bypassed, which is exactly what these people want to do. They have an agenda that is not inline with our current system or founding principles so they want to find a way around it. If there is something that the Congress or the President aren’t granted the powers for in the Constitution, there is a legal way to fix that. They’re called amendments. We need to get back to using those to ensure our government is staying within its bounds. They take a lot of work but that was the point. Our Founders did everything they could to build a system that would chain down the Federal government so any attempts to change it or give it more power would require a lot. Now I guess we just do what we want. I’m ashamed to imagine what our Founders would think if they were all to come back and see what we’ve done to the nation they built.