Out of 16 major American institutions, Congress ranks dead last in the eyes
of the American people according to Gallup. Even HMOs are more revered. If
Carrot Top and Joey Buttafuoco were elected to Congress, it would improve
the legislative branch's reputation.
The reasons for Congress' craptacular standing are too long to list here.
But some culprits never get blamed, even though they are hiding in plain
sight. Chief among them: the U.S. Supreme Court.
Have you ever had a boss who treated you like a child, second-guessed you,
reworked whatever you did so that you felt no ownership of the final
product? As a result, did you take your job less and less seriously
precisely because you knew that whatever you produced wouldn't really be
yours anyway?
Well, the Supreme Court is the boss, and Congress is the Dilbert. There was
a time when the U.S. Congress took the Constitution very seriously. Even
after Marbury v. Madison, the 1803 case that established the Supreme Court's
power of judicial review, Congress and the president were still the chief
guardians of the Constitution. Indeed, before the Civil War, only two acts
of Congress were found unconstitutional by the Supreme Court.
These days, the court seems to find duly enacted laws unconstitutional six
days a week and twice on Sunday.
Lawmakers rarely bother their pretty little heads with the Constitution.
Rather, they just load as much spit, tar, Vaseline and whatever else they
can think of on a legislative fastball and try to get it over Scotus' plate.
If those imperial umpires don't call a constitutional strike, well, then,
voila it must be constitutional.
Presidents are no better. George W. Bush, in his one act that does approach
an impeachable offense, signed campaign finance "reform" in 2002 even though
he made it clear he thought the law was unconstitutional. At the ceremony,
he expressed his "concerns" over the fact that the law -- he signed! --
"restrains the speech of a wide variety of groups on issues of public import
in the months closest to an election."
But, have no fear, the super court is here. "I expect," he explained, "that
the courts will resolve these legitimate legal questions as appropriate
under the law."
No sale. Congressmen, senators and presidents alike swear to protect and
defend the same constitution as the Supremes do. In the 19th century,
Congress actually debated constitutionality with passion, and if it found a
proposed law falling short of that standard, it was fixed or killed, not
outsourced to the Supreme Court for retrofitting.
The court, by assuming that responsibility, and the other branches of
government, by surrendering it, have permanently damaged the constitutional
order. Indeed, Thomas Jefferson believed that a judiciary with final
jurisdiction over the constitutionality of presidential and legislative
actions "would make the judiciary a despotic branch" of government.
Today, that despot has a name. It's Justice Anthony Kennedy. Kennedy rules
-- thanks to his status as the court's swing vote -- as the true King of
America.
For example, Congress and the president hammered out a system for treating
enemy combatants held at Guantanamo Bay -- at the behest of the court. But
that compromise wasn't to His Majesty's liking, so it was invalidated anyway
in Boumediene v. Bush, which gave members of al-Qaida more rights than
captured Nazis in WWII.
Indeed, the whole debate in Congress has been over to what extent the
Supreme Court should be running our POW system, not what our POW policy
should in fact be.
And just this week, Justice Kennedy issued a diktat in which he quashed
Louisiana's sovereign and popular decision to execute a man for raping his
8-year-old stepdaughter in a manner so brutal the details cannot be even
hinted at in this space. Why? Not because such executions violate the
sensibilities of the public, or the constitutional precedents, or even what
Kennedy calls "evolving standards" of decency, but simply because they are
at odds with the court's own sense of lese-majesté.
Supreme Court critic Mark Levin has it right when he says that "every time
the Supreme Court meets in secret conference, it sits as a constitutional
convention, rewriting the Constitution at will."
Aside from a legalistic-yet-lawless despotism that makes the meaning of our
constitution hinge on how much fiber Justice Kennedy's diet has on a
particular day, the result of this pathetic state of affairs is that the
first branch of government doesn't take itself seriously. It is merely a
caucus of goodie-givers, sent to Washington to dole out trinkets to whomever
it may. At least the president is still charged with life-or-death decisions
from time to time. But Congress doesn't take itself seriously, so who can
blame Americans for following its lead?