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"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 people will have ceased to be their own rulers,
having, to that extent, practically resigned their government
into the hands of that eminent tribunal." — Abraham
Lincoln
 pponents of the
campaign-finance bill say that since President Bush believes it
has unconstitutional provisions, he is duty-bound to veto it. Supporters
of it are saying, essentially, that even if the bill is unconstitutional
it's not Bush's job to make that call. Andrew Sullivan writes that
for Congress (and the President) to leave the constitutional questions
to the courts would be "a civics lesson." He says, also,
that doing so would be in keeping with conservatives' practice on
other issues: They have asked Congress to pass restrictions on abortion
that they know might be struck down by the Supreme Court.
Sullivan's
argument works if, and only if, the Constitution is whatever the
Supreme Court says it is in its case law — so that, for example,
the statement "this bill is unconstitutional" is equivalent
to the prediction that "the Supreme Court will strike down
this bill." That's an argument with a fine pedigree: You can
find support for it in the writings of Justice Oliver Wendell Holmes
Jr., and (arguably) in the Court's 1958 case Cooper v. Aaron.
But it makes unintelligible the notion that the Court can get the
Constitution wrong, and thus also makes unintelligible dissents
and overrulings.
The alternative
view is that presidents and legislators who swear an oath to uphold
the Constitution must defend it using their best judgment of what
it means. A constitutionalist political culture cannot be sustained
if the Constitution is held to be the province of the federal judiciary
alone — both because lawmakers will no longer need to look
to the Constitution's provisions when doing their jobs and because
the Constitution would then be reduced to a mere grant of power
to the federal judiciary.
That's why
John McCain, if he truly believes his bill is fully constitutional,
can in good conscience vote for it even if the Supreme Court disagrees.
(It's also why an argument that congressmen should vote against,
or the president not sign, the bill cannot rest solely on Supreme
Court precedents without a defense of the rightness of those precedents.)
It's why pro-lifers are right to support abortion restrictions that
they know are constitutional even if the Supreme Court later strikes
them down.
It's also why
Andrew Jackson issued the first presidential veto: He thought that
re-authorization of a national bank was beyond the federal government's
constitutional powers. If President Bush still believes that the
campaign-finance bill is unconstitutional, he cannot in good conscience
do anything but veto it. If he no longer believes that, he owes
us an explanation for his change of heart.
What Sullivan
advocates is civic miseducation. A better lesson would follow from
a return to Lincoln's understanding of officeholders' constitutional
duties.
Kurtz
on Brock
Howard Kurtz has a Washington
Post Style-section piece on David Brock and his new book, in
which Brock renounces his former mudslinging against liberals by
slinging mud at conservatives. The piece is better than the Style
section's
previous take on Brock, which relayed his attacks on the late
Barbara Olson without mentioning any of the reasons for doubting
him (including the fact that he has admitted lying in print before).
But there are some odd chronological mistakes.
Some of them
are minor. Kurtz writes, "In a 1998 Esquire article in which
he was photographed shirtless and tied to a tree, he apologized
to President Clinton for Brock's 'Troopergate' article on alleged
sexual high jinks in Arkansas." Kurtz is conflating two Brock
essays for Esquire. The photograph appeared in July 1997, the apology
in April 1998.
Some are more
important. Kurtz mentions that in the mid-'90s Brock wrote a book
on Hillary Rodham Clinton that some conservatives thought went too
easy on her, and denounced Gary Aldrich's anti-Clinton book. Kurtz
then writes, "Conservatives were appalled. The party invitations
vanished. . . . New York Post columnist John Podhoretz, who had
given Brock his first job at Insight, called him a 'disgrace' who
was engaged in 'almost boundless hypocrisy.'"
Podhoretz's
column was prompted neither by Brock's Hillary book nor by his denunciation
of Aldrich. It was based on his apology to Clinton. Conservatives
didn't turn on Brock for being soft on Mrs. Clinton. They were appalled
when he started to smear them.
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