Washington Post blogger Jennifer Rubin says that Robert P. George was asking the Republican candidates “to take a constitutional lark that would have been a serious problem in a general-election setting” and advancing a “pet theory.”
Professor George was asking the candidates whether Roe v. Wade precludes Congress from acting on a contrary understanding of the Constitution. Rubin attempts to cast doubt on the precedents usually advanced for the view that Congress sometimes has a duty to act on its independent constitutional judgments.
“Now, Lincoln was fighting to save the Union (and hence violated habeas corpus restrictions) and was, well, Lincoln. Moreover, it’s not clear that he was exhorting the elected branches not to follow the Supreme Court rulings; after all, the amendment process does give the states (and thereby the people) the final say.”
This is mistaken. In the first place, asserting a right to regard Dred Scott as binding only on the parties to the litigation manifestly did not serve the cause of saving the Union: Lincoln’s willingness to stand on principle on this issue was, after all, a precipitating factor in the South’s secession. And Lincoln certainly did have the executive branch disregard Dred Scott when its litigants were not involved, reversing agency decisions in passport and patent cases so as not to be consistent with its principles. Does Rubin really wish to maintain that everyone should have treated Dred Scott as a sound reading of the Constitution until the Thirteenth and Fourteenth Amendments had been ratified? That the Confederates were right and Lincoln wrong about the constitutional status of slavery?
Rubin continues: “But of course, for 200-plus years we’ve lived with the rule of law, allowed the court to interpret the Constitution and avoided constant constitutional crises. Richard Nixon didn’t ignore the Supreme Court ruling on the tapes. Dwight D. Eisenhower didn’t ignore Brown v. Board of Education. And certainly George and others would have a fit if President Obama ignored a ruling holding ObamaCare unconstitutional.”
This is off point. While we have lived with the rule of law, allowed the court to interpret the Constitution, and avoided constant constitutional crises — and George’s question did not imply any desire to change these happy circumstances — we have certainly not taken the view for 200 years that the Court’s interpretation of the Constitution is binding on the other branches. (Side note: How does Rubin know what George’s views on Obamacare’s constitutionality are? Did she ask him? Has he written something on the topic with which I’m unfamiliar?) George’s view is that the Supreme Court itself violates the rule of law when it disobeys the Constitution. Does Rubin disagree with him, and with Lincoln?
Note also that George was not recommending a strategy of having Congress pass a sweeping anti-abortion law, as some commentary has had it. He was trying to get the candidates to explain their constitutional views on the question of how much leeway the other branches have in protecting the unborn given the Court’s rulings.
As I mentioned yesterday: When Congress passed the ban on partial-birth abortion and President Bush signed it, the Supreme Court had ruled bans unconstitutional. It is hard to see how a Congress and a president who share Rubin’s defective understanding of the Court’s sovereignty over the Constitution could have done any such thing. But the earth did not split in two when it happened.
I believe advancing "pet theories" is what the President of the United States does. For instance, throwing billions of taxpayer dollars at union jobs will create jobs for the 89% of American workers who don't belong to unions and stimulate the economy back to good health.
Reply to this commentLinkReport AbuseThe court was never meant to be the final arbiter on all things Constitutional. Each branch of government was tasked with upholding the constitution (see oath's of office) and given powers to block the other branches from acting unconstitutionally.
Unfortunately, I believe the framers made a mistake when it came to the Judicial branch. They gave lifetime tenures and the only check on the Judicial is so hard to obtain it can practically never be done.
Examine how the executive and the legislative branches check each other. There is a natural escalation of checks on each other's powers. Congress can not fund the executive, congress appropriates, the president can veto, the president has some discretion on enacting law, congress can override the veto, etc. Congress can do a lot to check the President without resorting to impeachment and removal from office.
Yet the only checks on the judicial branch are the appointment process (then an absurd lifetime tenure) and an nuclear option with a bar so high it will never be reached.
Too many checks on the judicial would politicize the Judicial branch too much (though how political is it now?), but the Constitution also never gave the Judicial as much power as it has now built for itself by case law precedent and no practical way for Congress or the President to remove that power.
Reply to this commentLinkReport AbuseR: Did you read the Toobin piece on Thomas? Or the Walter Russell Mead follow up post?
He talks about the loss of reverence for precedent and how Thomas is slowly turning the court right. Like the Colorado River sculpting the Grand Canyon!
What is wrongly decided by the court is not sacrosanct.
Go Thomas!
Reply to this commentLinkReport AbuseRubin never made the full conversion. She still does the left coast culture warrior thing from time to time. She tries to be a good righty but some of us make it too hard on her. Principled opposition to abortion "rights" and the belief that gov't intervention in the market is always wrong is a tough nut to crack for some. Or maybe she is a new kind of conservative? I wonder if they have a name for that?
Reply to this commentLinkReport AbuseI didn't get the sense that George was principally asking about the interaction between the branches, and only using the Fourteenth Amendment as an example. If that were his principal concern, he could have expressed it much more clearly, and in a way that made more sense for presidential candidates, by simply asking whether they would use the executive power to enforce Roe vs. Wade (for example, by sending Federal marshals to prevent a state from shutting down an abortion clinic).
It seemed to me that he was in fact principally concerned with whether Section 1 of the Fourteenth Amendment gives Congress the power to outlaw abortion nationwide. I think it's fair to call that a "pet theory", since it's not very widespread even in Conservative legal circles, and it doesn't have a single adherent on the Supreme Court. The answer I would have liked to see the candidates give is that, as much as we might like to have a silver bullet to eliminate abortion, it's very unlikely that the framers of the Fourteenth Amendment, or an educated person of the time, would have thought that the amendment permitted a Federal ban on abortion or that "person" as used therein included the unborn. Moreover, when we on the right resort to this type of too-clever-by-half argument, perhaps colorable based on a certain reading of the text, but contrary to the original understanding of that text, we lose our standing to complain about the left doing the same thing to the Commerce Clause, the Eighth Amendment, etc.
Reply to this commentLinkReport AbuseMay I quote my favorite bit from Lincoln's First Inaugural?
"I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes."
Thank you.
Reply to this commentLinkReport AbuseIf Professor George had actually done what Mr. Ponnuru says he was doing I wouldn't have had a problem with it. The U.S. Supreme Court decides cases - not issues - and it's perfectly fine for other branches of the Government (or the states) to continue to try find ways to do what they want to do - subject to the good sense of not wasting everyone's time and money beating your head against the wall. I wouldn't favor my city acting in a way that its officials knew darn well would result in a losing court fight.
But unfortunately, that's not what Professor George actually did. Instead, he asked a badly crafted and apparently ill-thought-out question that appeared designed more to impress the viewers with the Moral Wonderfulness of Professor George than to give the candidates the opportunity to explain whether and how the Federal Government should facilitiate, regulate or restrict abortion - or whether, assuming that Roe was overturned and they are free to do so, the matter should be left entirely to the states.
I dislike debate questions that are all about the questioner and it doesn't matter whether I share the questioner's apparent views on the subject. This one fell into that category. Asking a good question wasn't exactly a brain-twister and Prof. George blew it.
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