Imagine for a moment the entire Supreme Court was wiped out in an asteroid strike, or maybe they ate some really bad clams. Whatever.
With the Supreme Court temporarily out of the picture, could Congress and the White House ignore the Constitution, shutting down newspapers and locking up tea partiers or ACLU members?
“I have been fascinated by [Delaware GOP Senate candidate] Christine O’Donnell’s constitutional worldview . . .” Slate senior editor Dahlia Lithwick confessed. O’Donnell had said in a debate, “When I go to Washington, D.C., the litmus test by which I cast my vote for every piece of legislation that comes across my desk will be whether or not it is constitutional.”
To which Lithwick, a former appellate law clerk, Stanford Law grad, and widely cited expert on the Supreme Court, responded, “How weird is that, I thought. Isn’t it a court’s job to determine whether or not something is, in fact, constitutional? And isn’t that sort of provided for in, well, the Constitution?”
Newsweek’s Ben Adler was aghast at the clause in the GOP’s Pledge to America that Republicans will provide a “citation of constitutional authority” for every proposed piece of legislation. “We have a mechanism for assessing the constitutionality of legislation, which is the independent judiciary,” Adler wrote. “An extraconstitutional attempt to limit the powers of Congress is dangerous even as a mere suggestion, and it constitutes an encroachment on the judiciary.”
A progressive blogger, meanwhile, writes in U.S. News & World Report that such talk of requiring constitutionality is “just wacky.”
Before we get to the historical niceties, a question.
Does anyone, anywhere, think legislators should vote for legislation they think is unconstitutional? Anyone? Anyone?
How about presidents? Should they sign such legislation into law?
Yet, according to this creepy logic, there’s no reason for congressmen to pass, obey, or even consider the supreme law of the land. Reimpose slavery? Sure! Let’s see if we can catch the Supreme Court asleep at the switch. Nationalize the TV stations? Establish a king? Kill every first-born child? Why not? It ain’t unconstitutional until the Supreme Court says so!
And of course, that means the president can’t veto legislation because it’s unconstitutional, because that’s apparently not his job. Wouldn’t want to “encroach” on the judiciary!
Of course, reasonable people understand how absurd all of this is.
There’s nothing in the Constitution — nothing! — that says the Supreme Court is the final or sole arbiter of what is or is not constitutional.
Nor is there anything in Marbury v. Madison, the Supreme Court case that famously established judicial review. Nor is there in Cooper v. Aaron, the 1958 case in which the Court ruled that its findings are the law of the land.
George Washington vetoed an apportionment bill in 1792 because it was unconstitutional. What was he thinking? If only he’d had a Ben Adler around to tell him what a fool he was.
Andrew Jackson vetoed the reauthorization of the national bank in 1832 because he believed it was unconstitutional. He added at the time that “it is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision.”
“Even the Supreme Court has never claimed that it is the only branch with the power or duty to interpret the Constitution,” says Jeff Sikkenga, a constitutional historian at Ashland University’s Ashbrook Center. “In fact, it has said that certain constitutional questions like war and peace are left to the political branches to decide.”
The debate over whether the courts are the final word on the Constitution is more than 200 years old. The debate over whether they are the sole arbiter of constitutionality is extremely recent and extremely silly.
But it’s also necessary because too many politicians — in both parties — have abdicated their most solemn duty: to support and defend the U.S. Constitution. George W. Bush signed campaign-finance reform even though he thought much of it was unconstitutional. Nancy Pelosi thinks the Constitution has as much relevance as a pet rock. When asked if the health-care bill was constitutional, her perpetually wide-open eyes grew perceptibly wider as she incredulously asked, “Are you serious?”
The real issue is quite simple. If more politicians were faithful to the Constitution, the government would be restrained. And restraining government is “weird,” “wacky,” and “dangerous” to so many liberals today.
– Jonah Goldberg is an editor-at-large of National Review Online and a visiting fellow at the American Enterprise Institute. © 2010 Tribune Media Services, Inc.