Roger, Mark can speak for himself, of course, but I take him to be making an argument that is the antithesis of what you’ve portrayed it to be. He is not saying that one should support legislation one believes to be unconstitutional in the bad faith hope that the Supreme Court might mistakenly (or in bad faith) uphold it. He is saying that one may (and often should) support legislation one believes in good faith to be constitutional even if one realizes there is a good chance the Supreme Court will in bad faith invalidate it.

What determines the propriety of a legislative proposal is the Constitution, not a prediction of how the proposal might be ruled on by a Supreme Court notorious for elevating politics over law. More concretely, let’s assume one believes legislation that would deny birthright citizenship to the U.S.-born children of illegal aliens is both (a) consistent with the Fourteenth Amendment (as I argued yesterday and as is more comprehensively argued in Edward J. Erler’s excellent column on the home page), and (b) a proper exercise of Congress’s plenary power under article I, section 8, to establish the criteria of naturalization. Under that good faith belief, it would be appropriate to support such legislation even if one suspects that five justices on the current Supreme Court might well contort the Constitution to strike it down. And if one believes the policy of granting birthright citizenship to the children of illegal aliens is harmful to the nation, then supporting legislation to end the policy would not only be appropriate but in the nation’s best interests — regardless of what the Court’s progressives might eventually do.

When our government and our nation functioned better, it used to be understood that every branch of government had an obligation to make an independent judgment about the constitutionality of its actions. The Supreme Court’s ruling was understood as dispositive only because it was final, not because it was necessarily right. The modern notion that legislatures and presidents should feel free to support dubious measures because the Supreme Court will sort it all out at some point is noxious. But so is the corrollary that the political branches should refrain from good policy they validly believe to be constitutional just because the Supreme Court might come to a different conclusion. If you are convinced you are right, and you believe you have a chance of convincing a court that you are right, there is no duty to refrain because that court might — for good or bad reasons — decide you are wrong.