The Corner

Slaughtering the Constitution

At the Examiner, Mark Tapscott points out that when the Republican-controlled Congress used a “self-executing” rule very similar to the “Slaughter rule” to raise the debt ceiling in 2005, Rep. Louise Slaughter — along with Rep. Nancy Pelosi and Rep. Henry Waxman — went to court to try to reverse it, arguing that it was a blatant violation of the Constitution’s procedure for passing legislation (art. I, sec. 7).

The bad news for present purposes is that they lost the case. The D.C. Circuit in Public Citizen v. U.S. District Court upheld the procedure. Upheld in this case does not mean endorsed. The Court did not say the self-executing rule was constitutional. It said it could not reach the question due to the standards of deference that apply between departments of government: If the presiding officers of both houses of Congress attest that their respective chambers have passed a piece of legislation, the Court is required to accept those representations as conclusive.

That doesn’t mean it is proper for government officials to execute a procedure that violates the Constitution, nor does it mean that a presiding officer should attest something that is not true. It does, however, suggest that it may be an uphill battle to get a court to declare the process null and void.

Mark is correct to point out that raising the debt ceiling is (regrettably) a routine, uncontroversial practice. Byron made a similar point yesterday in running down the handful of times the “self-executing” procedure has been followed. The key here is that in each instance, at issue was something that was non-controversial or almost ministerial — not, as with heathcare, an unpopular, bitterly opposed, ragingly controversial socialization of the private economy.

I think Democrats are mistaking a customary short-cut for a substantive precedent.

Let me make a comparison from trial procedure that I believe underscores this point. Like legislation, trial is an expensive, burdensome process governed by constitutional mandates and exacting rules of procedure. If everything were followed to the letter in each case with each witness, trials would take forever. This would waste everyone’s time because, ordinarily, not everything in a case is in dispute.

To use a common example, let’s say I’m accused of selling heroin and my defense is that I wasn’t there — it’s a case of mistaken identity. Now, to prove the case against me, one of several elements the government is required to establish beyond a reasonable doubt is that the substance sold was heroin. The Sixth Amendment guarantees me the right to force the government to bring its witnesses into court, make them testify, and allow my lawyer the opportunity to cross-examine them. I can make the prosecution summon the agent who seized the package from the buyer; the agent who lodged it as evidence and can say that the package now in the courtroom is the same one seized; and the chemist who conducted various tests on the substance inside the package and can show that he is competent to render an expert opinion that the substance is heroin of a given weight and purity.

But wait a minute. My defense is not that the package wasn’t heroin. My defense is that I didn’t sell it. It makes no difference to my case that the package actually contained heroin. It could be the biggest, purist heroin package of all time — I’m not disputing that; I’m saying I wasn’t there.

So even though I have a right to require the government to bring all those witnesses into court and make them testify, I elect not to. The process is called “stipulation.” I agree with the prosecutor that the jury can simply be read a statement that both sides of the case agree that if X witnesses were called, they would testify that the package in the courtroom is the package seized by the agent, and that a competent chemist tested it and found it to be heroin. Instead of hours of testimony, these matters are proved in about 60 seconds. Then we can get on to the real crux of the case: the witnesses who claim that they saw me sell the package to the customer from whom it was seized. With those witnesses, you bet I am going to demand that the government produce them, make them testify under oath, and allow my lawyer to grill them about the lighting conditions, whether they were high on drugs that day, whether they’ve cut a deal and are lying about me to save their own hides, etc.

To analogize, here is what I think the Democrats are doing: They are saying that because I once stipulated, on an uncontroversial issue, and allowed the streamlined proof of a proposition that was of little or no importance to me, I have forever waived my Fifth and Sixth Amendment rights to due process of law and confrontation. They are saying that because I stipulated that the drugs were drugs, I must also stipulate that I was the guy who sold them — that I have forfeited my right to make them come in, testify, and convince the jury that they are telling the truth, as the Constitution requires. In essence, they are saying a trial is no longer a trial with all the attendant guarantees.

No judge would abide such a system. It would turn justice into a kangaroo court. More importantly, the public would no longer regard the judicial system as legitimate. It’s outcomes would no longer be worthy of our acceptance and respect. We would no longer follow its rulings and dictates.

This is what is happening to the legislative process. Sure, we don’t make lawmakers dot every “i” and cross every “t” every time. But that doesn’t mean we’ve abandoned the right to make them play it by the book when it comes to a controversial matter. When there’s a real dispute, they have to pass the bill the regular, constitutionally mandated way: Both houses on the exact same text, with every legislator accountable for his vote.

If, instead, the legislative process becomes a farce that departs from the constitutional procedures we are entitled to enforce, then it no longer represents the consent of the governed. It is the first American principle that government derives its just powers only from the consent of the governed, and when it takes on a form that becomes destructive of the fundamental rights of the governed, it is no longer legitimate.

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