Posted on 07/22/2008 4:20:05 AM PDT by Kaslin
Every president, every senator, every member of Congress and every Supreme Court justice takes an oath to uphold the Constitution of the United States.
The way some of them behave, though, you have to wonder if they’ve ever read it.
The Constitution is clear and understandable. It gives Congress, the legislative branch, the responsibility of passing our laws. It gives the president, head of the executive branch, the responsibility of enforcing those laws. And it gives the courts, headed by the Supreme Court, the responsibility of interpreting them.
Yet in recent years, leaders of all three branches have expressed confusing -- and incorrect -- ideas about the Constitution.
Take the members of Congress who filed a brief with the Supreme Court urging it to strike down Washington, D.C.’s gun ban. Fortunately, the Court agreed. But Congress had the power to defend D.C. residents’ gun rights all along.
Congress could have passed a law at any time removing the unconstitutional restrictions on gun ownership in the District. But it didn’t. Now, as the D.C. city council considers new legislation to restrict gun rights, Congress continues to be silent, again leaving the question to the courts -- when members have a duty to protect the Constitution, and the rights of D.C. residents as well.
Of course, the judicial branch is hardly blameless.
Courts frequently overstep their bounds, creating law rather than merely interpreting it. There are many examples, but one case proves the point. During its 2004 term, the Supreme Court ruled that detainees at Guantanamo Bay -- enemy combatants captured on foreign battlefields -- had the statutory right to file habeas corpus petitions in U.S. federal courts. It was a new right for enemy combatants.
Congress changed that. It passed the Detainee Treatment Act, which said, in part, “no court, justice or judge shall have jurisdiction to hear or consider” applications on behalf of Guantanamo detainees. That’s crystal clear -- lawmakers wanted to ensure detainees wouldn’t be able to tie up federal courts with endless habeas lawsuits.
Then, in 2006, the Court decided another detainee case, this time finding that the president needed express authorization from Congress to establish military commissions. Congress took them up on this offer by passing the Military Commissions Act (MCA), and made it even clearer that the Courts are not authorized to hear habeas claims from Guantanamo.
Now the Supreme Court has moved the goalposts again. This year it decided, by a 5-4 margin, that the procedures Congress established (which the Court advocated for earlier) were inadequate and that the MCA was unconstitutional. Chief Justice John Roberts dissented. He wrote that the majority opinion was really about “control of federal policy regarding enemy combatants,” and that’s certainly correct. Here, the court is setting policy that should be -- and in fact had been -- set by Congress.
Finally, there’s the executive branch.
In 2002, President Bush signed the McCain-Feingold campaign-finance reform bill. Even as he did so, he noted, “I also have reservations about the constitutionality of the broad ban on issue advertising.” Yet, Bush added, “I expect that the courts will resolve these legitimate legal questions as appropriate under the law.”
But that’s the wrong approach. Upon inauguration, a president swears to uphold the Constitution. If he thinks a bill is unconstitutional, he is duty bound to veto it, not kick it down the road for the courts to rule on. And as it turned out, the courts allowed the questionable provisions to stand, so now they’ll be harder than ever to fix.
Members of all three branches of our government should do some light reading this summer, and refresh themselves on their proper roles. After all, you can’t uphold what you don’t understand.
ML/NJ
Good One!!!
Perhaps the writer of this piece should be called Constitutionally Clueless.
BUMP!
Take the members of Congress..No thanks. You take em.
'Series' the only part of the Constitution that Congress reads is the Commerce Clause. Nothing before it, nothing after it. Then they sit awake all night devising ways to pass every bullsh*t law under the sun by citing it as their constitutional authority and hoping nobody, like SCOTUS, notices their 'law' is full of __it.
From Gay Hate Crime Laws to School Zone Gun Bans you'll find those two words, "Commerce Clause". I haven't checked McCain-Feingold, but I'd bet the rent they're there too.
I don't see any cluelessness on the part of the writer. Is there some specific point in the article that you think the writer got wrong?
Like many people, the writer apparently believes the federal, or 'general' government has the authority to pass laws for the entire nation, which is certainly not the case.
It gives Congress, the legislative branch, the responsibility of passing our laws.
The legislative branch has the responsibility for passing laws within the federal district in it's function as a civil body, and in the strictly enumerated areas of the Constitution as an administrative body. Administrative laws passed by Congress affect the States, NOT the People, so they cannot be 'our' laws.
James Madison, Federalist # 39:
But if the government be national with regard to the operation of its powers, it changes its aspect again when we contemplate it in relation to the extent of its powers. The idea of a national government involves in it, not only an authority over the individual citizens, but an indefinite supremacy over all persons and things, so far as they are objects of lawful government. Among a people consolidated into one nation, this supremacy is completely vested in the national legislature. Among communities united for particular purposes, it is vested partly in the general and partly in the municipal legislatures. In the former case, all local authorities are subordinate to the supreme; and may be controlled, directed, or abolished by it at pleasure. In the latter, the local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority, than the general authority is subject to them, within its own sphere. In this relation, then, the proposed government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.
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Secondly: And it gives the courts, headed by the Supreme Court, the responsibility of interpreting them.
The Supreme Court has only the ability to say whether or not a law passes constitutional muster. There is no 'interpretive' authority given. In fact, the only cases the Supreme Court has the authority to hear are those concerning the branches of the federal government.
Madison's Report on the Alien and Sedition Act quite plainly stated:
However true, therefore, it may be, that the judicial department is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government; not in relation to the rights of the parties to the constitutional compact, from which the judicial, as well as the other departments, hold their delegated trusts. On any other hypothesis, the delegation of judicial power would annul the authority delegating it; and the concurrence of this department with the others in usurped powers, might subvert forever, and beyond the possible reach of any rightful remedy, the very Constitution which all were instituted to preserve.
James Madison, Report on the Virginia Resolutions
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I'll agree with the writer that members of government should read the Constitution, but , IMHO, the truly required reading for public servants should be George Tuckers' View of the Constitution of the United States , which was the first legal treatise written after the ratification the US Constitution.
Thank you for keeping alive the memory of our dear, departed Republic.
It is indeed, Sir, my pleasure. :-)
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