June
27, 2002, 9:20 a.m. Usurpation
and Abdication
The
Court and the Constitution.
By NR
Editors, from the July 15, 2002, issue of National Review
he
Supreme Court issued an outrageous ruling on the death penalty, but it
did not inspire much outrage. It was greeted with equanimity because the
policy the Court imposed was within the bounds of reasonableness. The
Court ruled that the mentally retarded could not be executed. What should
cause opposition, and resistance, is not the policy that the Court imposed
but the fact that it imposed it — without constitutional warrant
— at all.
Nobody believes that
the Constitution, as originally understood, bars the execution of criminals
with low IQs. The Court did not bother attempting to argue that it does.
Instead, it concluded that the practice of executing the retarded offended
"evolving standards of decency." Its evidence for this claim
was that various professional associations have condemned the practice,
some state legislatures have recently prohibited it, and opinion polls
have found that the public opposes it. The reasoning is tissue-thin. If
a prohibition by some states is evidence that the country may be moving
toward a consensus against the execution of the retarded, the fact that
other states — most states that have the death penalty, in fact —
have not prohibited it is conclusive evidence that we have not
reached that consensus. Besides, reflecting the shifting opinions of the
public is not the Court's job. Elected officials are at least as good
at reading polls as justices are.
When the death-penalty
decision came down, these officials issued no protest at the diminution
of their authority. The day before, however, Steve Chabot, a Republican
congressman from Ohio, introduced a bill responding to another encroachment
by the Supreme Court on legislative authority. In 2000, the Court struck
down bans on partial-birth abortions. (These are the abortions, you may
recall, in which a fetus is partially delivered, its skull is crushed,
and it is then removed from the mother's uterus.)
The Court struck
down laws against partial-birth abortion for two reasons. It thought they
were worded too vaguely and thus could prohibit too many abortions. Chabot's
bill deals with this objection by tightening up the wording. Second, the
Court ruled that the bans must have a "health exception." This
point is often misunderstood. The Court did not rule that partial-birth
abortion must be allowed if the pregnancy threatens the health of the
mother. It ruled that it must be allowed if it is the safest method of
abortion, whatever the reason for which the abortion is sought. Chabot
addresses this objection by adducing findings of fact that partial-birth
abortion is never medically necessary, even in the sense the Court had
in mind — and that the Court has in the past deferred to congressional
findings of fact.
Passage of Chabot's
bill is a morally urgent matter. But notice what his bill does not do.
It does not challenge the legitimacy of the Court's decision; it tries
to undo its worst effects while working within its parameters. The bill
jumps through the hoops that the Court, and not the Constitution, has
set up — the necessity of "health exceptions," the inadmissibility
of restricting too many abortions. We say this not to criticize Chabot,
who is, again, doing necessary work while respecting the prevailing assumptions
about the Court's authority. But someone ought to challenge those assumptions.
The Court's usurpation
of legislative power is, in a way, the lesser of our constitutional deformations.
The flip side of the Court's usurpation of power is the other branches'
abdication of responsibility. The Framers of the Constitution never expected
that a branch of government would always stay within its prescribed boundaries.
It expected that when a branch transgressed the limits — particularly
if it did so repeatedly — the other branches would respond. It should
not be surprising that, in the absence of such a political response, the
extra-constitutional habits of today's Court have become ingrained. Congressmen
ought to dust off their copies of the Constitution, and look especially
closely at Article III, Section 2, which stipulates that the Court's jurisdiction
is subject to such "Exceptions" and "Regulations as the
Congress shall make."
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he
Supreme Court issued an outrageous ruling on the death penalty, but it
did not inspire much outrage. It was greeted with equanimity because the
policy the Court imposed was within the bounds of reasonableness. The
Court ruled that the mentally retarded could not be executed. What should
cause opposition, and resistance, is not the policy that the Court imposed
but the fact that it imposed it — without constitutional warrant
— at all. 
