The Courts Don't Own The Constitution

It was a sad day when President Bush announced he would sign the just-passed campaign finance reform bill. No, I'm not talking about the bill's imminent damage to the First Amendment, as distressing as that is, but to a potentially bigger blow to the Constitution.

Democratic leaders (and, of course, John McCain and his devoted band of McCainiacs) have been obsessing over "reform" for a long time. Never once have they exhibited concern over whether their proposals were compatible with the First Amendment.

To them, the end apparently justifies the means, even if the means involves denigrating the Constitution. It's just a document anyway – a living, breathing document that can be molded to say whatever they want it to say in furtherance of their ends.

How can you expect them to have much reverence for the Constitution when they believe it should be subordinated to their political interests? You can't and shouldn't.

But the Republican Party holds itself out as the guardian of the Constitution. So, when 11 of its senators cross over to sign this bill most everyone believes to be constitutionally flawed, it is disturbing. When a Republican president agrees to sign it into law – a Republican president who earlier pledged to veto it – it is even more disturbing, especially when in the process he admits the bill is of dubious constitutionality.

Why? Because both Congress and the president have an independent duty to uphold the Constitution. They are required, as a condition of taking office, to take an oath to support it.

What right do the Congress and the president have to ignore their oaths to support and defend the Constitution? What right do they have to abdicate their responsibilities to ensure that unconstitutional legislation does not become law? What right do they have to shirk their duties and confer on the Supreme Court the sole duty to uphold the Constitution?

Did you know that the text of the Constitution says nothing about the Supreme Court having the exclusive right to pass on constitutional questions? When Justice Marshall proclaimed the Court's power to declare acts of the legislative and executive branches unconstitutional in the 1803 case of Marbury vs. Madison, he wasn't relying on any specific constitutional provision.

In his opinion in that case, affirming that the Constitution is the supreme law of the land, Marshall said, "an act of the legislature repugnant to the Constitution is void." In such case, "It is emphatically the province and duty of the judicial department to say what the law is."

Marshall did not say that because the Court is the final arbiter of constitutional questions, the other two branches are absolved of their duty to uphold the Constitution. Indeed, he expressly acknowledged the legislature's duty (along with the Court's) when he said, "it is apparent that the Framers of the Constitution contemplated that instrument as a rule for the government of the courts, as well as for the legislature."

Of course, this is true. To argue otherwise would be to assume that the Framers imposed constitutional requirements and limits on the legislative and executive branches that they didn't intend for them to follow unless the Court forced them to do so. That's absurd.

Do our criminal laws, by analogy, hold that we citizens are free to violate them as long as we don't get caught? What if all citizens decided to ignore the laws on the theory that it was not their duty to obey the law, but law enforcement's duty to coerce them into obeying it? The law, indeed ordered liberty itself, depends on citizens obeying the law.

If this is true, then how much more important is it that our elected officials – even apart from their oaths – protect and defend the Constitution? As a practical matter, if legislators and presidents were to act in total disregard of the Constitution anytime they pleased, there wouldn't be enough courts to stop them – assuming they would anyway.

At one time, Congress and the president routinely honored their respective duties to consider the constitutionality of legislation. There used to be lengthy congressional debates over the constitutionality of legislation, and presidents vetoed many more bills than were invalidated by the Supreme Court on the basis of their unconstitutionality.

I don't mean to be too dramatic about all of this or to imply that the sky is falling, but the Constitution can only go so far in preserving our freedoms. If our elected officials are unwilling to honor it, they place those freedoms in jeopardy.

I don't know whether this essay was posted previously, but perhaps it is just as well that it gain a deserved replay.

Indeed, there is a mandate implicit in the very oath of office assumed by a Congressman or a President that they should not compose, pass, or sign legislation which is flagrantly enough unconstitutional and which they may well even know going in is unconstitutional. The Supreme Court is not the single arbiter of what is or is not Constitutionally permissible, it is - in more than one manner of speaking - the court of last resort when such questions arise.

I will not attempt to determine whether legislation is "needed" before I have first determined whether it is constitutionally permissible." - Barry Goldwater.

I will not attempt to determine whether legislation is "needed" before I have first determined whether it is constitutionally permissible." - Barry Goldwater.

What Barry determined good or bad never counted for diddley squat.

Barry only made statments. The Man who got to deside who was on the court and the Man who passed the laws was the fellow Barry Goldwater elected... Lyndon Baines Johnson.

Lyndon could not have gotten elected without the full help of Barry Goldwater.

Actions speak a lot louder than works and barry's real effect on the constitution has to be considered in light of the man Barry made president... LBJ.

What Barry said, has no meaning. What Barry accomplished does. And what Barry accomplished was the election of LBJ as president.

LBJ could not have done the great Society without Barry's help. LBJ told Barry that on several occasions. It ticked Barry off, but it was the God's Truth.

Blues, is a president that enforces laws he did not sign but has declared publicly he feels are unconstitutional violating his oath?

I think the more proper question might be, does he have a duty according to his oath of office to challenge in the courts the Constitutionality of any law he might deem unconstitutional (we bear in mind the point that there are, wish though we might otherwise, laws enough that have ambiguous enough Constitutional grounding), for which purpose among others he has a solicitor general? To which the answer is, certainly, Yes, he can be seen as having such a duty, and by dint of both his own oath of office and that clause in the main body of the Constitution by which Mr. Madison's document is proclaimed, assented, and acknowledged as the Supreme Law of The Land.

However, that question is also irrelevant to the current CFR debate, since we are not dealing with a law on the book and signed by a predecessor President. We are dealing with a law freshly passed by both houses of Congress and yet awaiting the President's signature or veto, a law which required no rocket science or even a law degree to know is unconstitutional. (Which part of Congress shall make no law...abridging freedom of speech did the Gang That Can't Shoot Straight on Crapola Hill not understand?)

There is much talk about the gamesmanship aspect in this tussle, but I think the critical point in that regard is this: Mr. Bush has approval ratings even Ronald Reagan could not claim as his own. He could well enough veto this package, state in plain enough language why this package deserves to go no further than his veto pen, and thus lay it right back on the heads of Crapola Hill to justify why they might yet see fit to override his veto (assuming the votes are there to do so) on behalf of a law that plainly enough traduces if not subverts the Constitution of the United States. And he has political capital with interest enough to make it stick, if he so chooses and finds the fortitude to do so, while exposing Congress concurrently as a body which, under its current configuration, cares not two pins whether this version of their petty little job protection program turns the Supreme Law of The Land into Silly Putty.

Blues, is a president that enforces laws he did not sign but has declared publicly he feels are unconstitutional violating his oath?

I've always wondered about that; on the one hand, it would seem to be a logical conclusion of the oath of office; on the other, a sitting president or someone else in the executive branch could refuse to implement any policy he disagreed with on the grounds that he believed it unconstitutional. One heartening thing about this situation, however, is that it favors conservatives and small-government activists: while you might get away with ignoring a policy set by the Congress, it would be harder to justify taking up a policy that the legislature has either vetoed or simply not debated. The system would seem to favor governmental inaction; hooray for us!

The issue brings to mind Andrew Jackson; two of the defining moments of his presidency involved his taking action based on what he thought the Constitution meant over the objections of Congress and the Supreme Court. In the first, he vetoed the charter of the Second Bank of the United States on the grounds that it was unconstitutional, the first time anyone had ever vetoed a bill on constitutional grounds. I've heard (but can't confirm) that the Supreme Court had already heard a challenge to a national bank and dismissed it.

On a heavier note, Jackson's policy of relocating the Cherokee Indians further west was brought to the Court's attention and found unconstitutional. His response: "The Supreme Court has made its decision. Now let them enforce it." He ignored the Court and proceeded to send away the Indians. Like it or not, this is probably the best case for establishing precedent that the Supreme Court is not the final arbiter of the Constitution, although it has an obvious potential for trouble if abused.

I think the more proper question might be, does he have a duty according to his oath of office to challenge in the courts the Constitutionality of any law he might deem unconstitutional (we bear in mind the point that there are, wish though we might otherwise, laws enough that have ambiguous enough Constitutional grounding), for which purpose among others he has a solicitor general? To which the answer is, certainly, Yes, he can be seen as having such a duty, and by dint of both his own oath of office and that clause in the main body of the Constitution by which Mr. Madison's document is proclaimed, assented, and acknowledged as the Supreme Law of The Land

He can also make a very real argument that by going on record as stating as he has, that sections of this bill are unconstitutional, the best way to prevent another president sweeping aside his veto and signing it a later date is to let the USSC codify his belief and put the issue to rest.

This presumes that Congress would not override his veto on this legislation. It may yet be an open question as to whether they would have the votes to make the override. But I still do not believe the President should take the cop-out of "letting" the Supreme Court "codify" a veto he might make on Constitutional grounds. I say again: Congress has an implicit duty to refrain from writing and passing legislation that is clearly enough unconstitutional, but if they should do so it then becomes the President's implicit duty to reject such legislation, say in plain language that he rejects it on very solid Constitutional ground, and let it revert to Congress's head to justify why they thought the matter addressed by the bill in question was so grave as to declare in effect that the Supreme Law of The Land means nothing astride its import.

The constitution gives the President a qualified veto that he can exercise while in office to in effect suspend legislation during his time in office. While we may agree that it would be emotionally satisfying for Bush to veto the bill it is NOT the only way he has at his disposal to uphold his oath of office.

I did not even consider any such thing as "emotional satisfaction" when arguing in favour of a presidential veto of this CFR bill, notwithstanding that certain parties (like Mr. McVain, for example) would get tremendous such satisfaction from seeing this abomination become law. My concern was and remains Constitutional satisfaction. This bill deserves to be vetoed, and on very solid Constitutional ground, and I concur with the Orange County Register editorialist who suggested that passing and signing this bill with the idea that the Supreme Court would do the dirty work of shooting it down, while they yet seem on the alleged side of the alleged angels (supposedly), is a cynical cop-out.

(I don't believe, by the way, that a veto is a President's only means of upholding his oath of office, but I do believe his oath carries an implied mandate, nevertheless, to veto legislation he knows to be unconstitutional. And, for anyone who might be eavesdropping on our discourse and wondering, just because previous Congresses have written and previous Presidents have signed knowingly unconstitutional legislation, it does not justify in any way, shape, or form doing so now. Any further than the fact that previous Presidents had slipped around on their wives and may have used the apparatus of the government to abet such slipping around did not justify Bill Clinton's doing likewise and committing perjury, suborning of perjury, and obstruction of justice on its behalf when it became relevant in a civil lawsuit involving him.)

Then every president in the last hundred years should have been impeached. Blues, You are taking a VERY narrow view here on one single president.

If my insistence that a Congress has no legitimate business writing, and a President has no legitimate business signing, flagrantly and well-enough-demonstrated unconstitutional legislation into law equals a "very narrow" view on "one single president" (for the record, I would have made the same arguments if it were Bill Clinton), I would be almost scared to death of knowing what "the broader view" might be. But you should bear in mind that I've not argued my position viz Mr. Bush without concurrently arguing that Congress had, essentially, no damned business writing and passing this bill in its present unconstitutional shape. If it is fair to say that Mr. Bush should not even think about just letting the Supreme Court do the dirty work, then it hardly needs to be said that Mr. Bush should not even have had to contend with this nonsense in the first place. And not merely because (I have, I think, pointed this out before) John McVain (and no few other Damnocrats and Republican'ts) are just waiting to see the bill signed and himself allowed the chance to play Roger Enrico to Mr. Bush's Coca-Cola and crow, "The other guy just blinked!"

And while I grant that only too often people will scream "unconstitutional" not because a bill is unconstitutional but because it is legislation they simply despise (how many times have we seen the liberals doing it!), I find it fascinating that so many people who strain to justify this bill and the passing of the buck to the Supreme Court, are the same people who would have sought Bill Clinton's head (both of them?) on a plate had he stood prepared to sign a bill of similarly blatant unconstitutionality and with similarly cynical motives.

For the record, however, I am not about to rush out and join in the fun of ripping the bumper stickers off the cars, never mind suggesting that by one issue should Mr. Bush's re-election be measured. I agree with you in that regard and, anyway, no car under my ownership has ever or will ever brandish bumper stickers of any sort.

I find it fascinating that so many people who strain to justify this bill and the passing of the buck to the Supreme Court, are the same people who would have sought Bill Clinton's head (both of them?) on a plate had he stood prepared to sign a bill of similarly blatant unconstitutionality and with similarly cynical motives.

I have never nor have I seen anyone on here "justifying this bill". I have simply argued that the constitutional framework of checks and balances will take care of this bill and that Bush is in no way violating his oath of office in not vetoing this bill. I don't know what advice his SG Ted Olson has given him but I would venture a guess that believes this is slam dunk in the court and the best way to put the issue to rest. I will retract that if and when I see Olson defending the law in court against Starr.

I have never nor have I seen anyone on here "justifying this bill".

Old friend, I wasn't alluding to the FREEP, necessarily, but I have heard people aplenty trying to justify either the bill itself or the mindset that says, well, that's pretty damn clever to just sign it, throw the bums on the Hill a bone and look like he's on the side of the campaign finance angels, and just let the Supreme Court Nine hit it the hell out of the park anyway. I mean, I don't think you would be any more surprised than I to hear someone make that argument or one similar to it.

I have simply argued that the constitutional framework of checks and balances will take care of this bill and that Bush is in no way violating his oath of office in not vetoing this bill.

I don't discount the framework of checks and balances by any means, but I still maintain that Mr. Bush's oath of office carries an implicit mandate that he veto any legislation he knows or believes to be unconstitutional. And in this time and place, if any President has the political capital to do it, it is Mr. Bush. Why on earth should Mr. Bush not spend some of that capital (and he would have plenty enough still remaining after so doing) making the proper Constitutional stance against this bill, throwing upon Congress the onus of justifying why they permitted a political passion of the hour to supercede a permanent mandate of the Constitution? Because the media or John McVain and Tom Douchel might fan his behind if he vetoes it? Let them scream - hand them the microphones; build them the podiums; let them rant their damned heads off. And let Mr. Bush give them a little (overdue) remedial training in Constitutional law.

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