The courts don't own the Constitution

Posted: Mar 23, 2002 12:00 AM
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.
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