Conscience and the Constitution
The president’s duty.

By Ramesh Ponnuru
February 26, 2002 6:00 p.m.

"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.