Signing Off

There are some real black marks on President Bush’s record on abiding by his oath to preserve, protect, and defend the Constitution. He signed a campaign-finance-regulation bill that he knew, at its core, exceeded the constitutional powers of the federal government. His approach to the constitutionality of governmental racial preferences has steadfastly avoided the temptations of principle. President Reagan regularly grounded the case for limited government in the Founders’ design; the notion seems alien to this president, who has therefore not even paid it lip service.

But the loudest complaints about Bush’s constitutional record are not ours. At the moment, those complaints center on the president’s allegedly unprecedented use of “signing statements” that announce his interpretation of laws as he signs them. Bush has supposedly altered the constitutional balance of power, illegitimately claimed a right to have the last word on matters of constitutional interpretation, and threatened the rule of law. The correct answer to this complaint is not that the ability to issue signing statements is a defensible and necessary presidential power. It is that it is hardly a power at all. The idea that Bush’s use of them has created a constitutional crisis is impossible to take seriously.

This week, a task force of the American Bar Association issued a report that takes it very seriously indeed: which is not surprising, considering that the task force was stacked with signing-statement hysterics. (The few Republican members of the task force were on record against signing statements at the time it was established.) Arlen Specter, the chairman of the Senate Judiciary Committee, has introduced legislation to implement the task force’s recommendations. The bill orders the courts not to rely on signing statements in interpreting laws. It authorizes the courts to render verdicts on the legality of signing statements.

We have often disagreed with Senator Specter, but we have rarely found him loopy. That is what he is here.

Consider, first, the alternatives to presidential signing statements. Can presidents really be expected to veto every piece of legislation that contains unconstitutional elements? The ABA thinks so. But presidents throughout American history have thought otherwise. As Ed Whelan has pointed out on NRO, nearly “every appropriations bill contains a provision that violates Chadha [the Supreme Court’s decision on legislative vetoes]. The task force’s position would lead, at best, to an insane game of chicken between the President and Congress.” Should presidents, then, be expected to implement provisions they believe unconstitutional? No president has heretofore taken that position, which would make them obedient to a statute at the cost of being disobedient to the Constitution under which the statute was enacted.

Neither Madison (then Secretary of State) who wrote the constitution or Jefferson (then president) who wrote the declaration of independence disputed Chief Justice John Marshalls ruling that the SUPREME COURT WAS THE FINAL ABRITOR of what what the words in the Constitution mean.

If you had only been there to tell Madison, Jefferson, and Marshall they were all wrong, I'll bet things would have been a lot different.

Common Tator

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Pete from Shawnee Mission:

"-- Now, Marbury is the law of the land, --"

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Marbury is not the "law of the land"..

Marbury is an accepted opinion by Marshall; -- and neither Madison or Jefferson disagreed in principle with its conclusion:

"-- Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument. --"

Marbury v. Madison (1803)
Address:http://usinfo.state.gov/usa/infousa/facts/democrac/9.htm

Notice that Marshall ends by saying: "-- that COURTS, as well as OTHER DEPARTMENTS, are bound by that instrument. --"

The constitutions 'arbiter' is the individual sworn to defend its principles, not the supreme court.

-- Where in Marbury does Marshall declare the Court to be the "FINAL ARBITER"?
-- He does not.. -- Marshall quite clearly states that judges too are bound by the Constitution:

"-- From these, and many other selections which might be made, it is apparent, that the framers of the constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature. Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies, in an especial manner, to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support! ------
---- Why does a Judge swear to discharge his duties agreeably the constitution of the United States, if that constitution forms no rule for his government? --"

Simply put, those who oppose the balance of power inherent in our Constitution deliberately misread Marbury; -- in order to contend that Court opinions that defend individual liberties are power grabs by so-called "FINAL ARBITERS".

Simply put, those who oppose the balance of power inherent in our Constitution deliberately misread Marbury; -- in order to contend that Court opinions that defend individual liberties are power grabs by so-called "FINAL ARBITERS".

To: tpaine; Common Tator
Thank you (both) for taking the time to explore / explain this.
I appreciate the additional information on Marbury and I am happy to see my--and others--misimpressions corrected.

Thanks.. Although I doubt that Tator will admit that he has any "misimpressions".. -- If he responds to my comments at all [he usually will not], -- he will simply deny that Marshall wrote what we all can read.

There are a lot of people on this forum who insist that fed/state/local legislators are not bound by the 'Law of the Land' in writing laws.. -- And they insist that judges at any level opposing such legislation are usurping majority rule 'democratic' principles.

They fail to realize that they're in opposition to the principles of our Constitutional Republic.

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