http://www.slate.com/id/2151048/
Pass the BuckWhen Congress passes unconstitutional laws.
By Dahlia Lithwick and Richard Schragger
Posted Saturday, Oct. 7, 2006, at 7:51 AM ET
The language of addiction has become the catchall excuse for bad
personal behavior of every sort, but it's worth invoking in one more
context: the constitutional one. Please do forgive the United States
Congress its atrocious behavior last week. It's not a bad institution,
per se. It's merely addicted to judicial review.
Last week, we watched as several senators voted for a bill redefining
the treatment, detention, and trials of enemy combatants, even as they
expressed doubts as to its constitutionality. The bill setting up
military tribunals for enemy combatants, among other constitutional
infirmities, contains a provision stripping courts of their power to
review the constitutionality of the detentions. This provision, which
suspends the writ of habeas corpus for current and future detainees, was
contested by a number of senators, but the amendment that sought to
excise it from the final bill failed by a vote of 51-49.
Before that amendment was rejected, Sen. Arlen Specter, R-Pa., chairman
of the Senate judiciary committee, announced, "I'm not going to support
a bill that's blatantly unconstitutional ... that suspends a right that
goes back to [the Magna Carta in] 1215." He added, "I'd be willing, in
the interest of party loyalty, to turn the clock back 500 years, but 800
years goes too far."
Specter's justification for then voting for a bill he deemed
unconstitutional? "Congress could have done it right and didn't, but the
next line of defense is the court, and I think the court will clean it
up."
There is some irony in this congressional willingness to see the courts
as some kind of constitutional chambermaid—as an entity that exists to
clean up after Congress smashes up the room. It is especially ironic
when it's articulated by members of Congress who like to invoke judicial
restraint as a constitutional value. But it is beyond ironic, and
approaching parody, when Congress asks the court to clean up a bill it
knows to be unconstitutional, when the bill itself includes a
court-stripping provision.
Criticizing the court for overturning the laws passed by Congress—as
Specter did repeatedly during the John Roberts and Samuel Alito
hearings—is fair, so long as one is willing to defend one's own
interpretation of the Constitution when one gets a chance to assert it.
But simultaneously crying "judicial activism" as you rely on the courts
for political cover when you're too timid to defy the electorate—or your
president—is hypocritical.
Why should the Supreme Court defer to a Congress that adopts laws it
suspects of being unconstitutional? And what should we think of those
elected officials who would take so cavalier an attitude toward their
oath to uphold the Constitution?
Members of Congress take the same oath as do Supreme Court justices,
after all. And Congress regularly asserts its institutional prerogative
to interpret the Constitution—to act on an equal footing with the
Supreme Court in making decisions about the constitutionality of a law.
Moreover, the justices are supposed to assume that Congress never
intentionally adopts an unconstitutional law, and you need attend only a
few moments of oral argument to see how seriously they take that charge.
So how is it possible that an oath-bound member of Congress can support
a law that he or she believes violates the Constitution?
Congress gives in to the temptation of passing laws that are of
questionable constitutionality because it's easy and convenient.
Political expediency seems to trump constitutional principle. The
elected branches need never defy the popular will if the courts are
available to do so instead. And those members of Congress who insist
that the courts should stay out of Congress' business should recognize
Congress for the enabler it's become. It's a two-way street: The courts
work with what Congress sends them, and sometimes Congress purposefully
sends them unconstitutional legislation because it is politically
expedient to do so.
That's why lawmakers who think that legislation banning flag-burning
violates the First Amendment regularly trot it out anyhow. It is an easy
way to mollify voters, while letting some other branch grapple with what
the Constitution actually requires. As an added bonus, lawmakers then
can blame the courts for usurping the will of the electorate, turning an
ordinary political pander into an Olympics-worthy double-pander.
So instead of pointing fingers at the court, let's call the whole
relationship what it is: dysfunctional. For all their railing against
the court, Congress sometimes relies upon it to achieve substantive
aims. The court, sheltered from political fallout, can sometimes afford
to be brave when Congress cannot. But this suggests that cries of
"judicial activism" from Congress should be suspect. As is the case in
any dysfunctional relationship, Congress has a vested interest in being
upheld when it wants to be, and struck down when it needs to be bailed
out.
The ongoing popular debates about the terms and parameters of "judicial
activism" or "restraint" really have to be understood in institutional
terms. Congress behaves strategically. When it is convenient, members of
Congress will praise and advocate judicial restraint, and when it is
not, they will rely on "activist" judicial intervention. Sen. Specter's
argument during the Roberts and Alito hearings bears this out. Specter
was distressed not that the court was too activist in striking down acts
of Congress, but that it was too activist in striking down the wrong
acts of Congress. Yet this judicial backstop serves Specter's goals when
he is unwilling to make the call himself.
Whether one agrees or disagrees with any given view of what the
Constitution requires, the strategic use of the court reduces
accountability, it corrupts the lawmaking process, and it is deeply
cynical. Lawmakers should take their constitutional obligations
seriously. And if they do not take their own obligations seriously, then
they have no right to criticize the judicial branch when it does.
Should the Supreme Court bail out Congress for the unconstitutional
provisions of the new detainee legislation? Once again, it has no
choice. But the real question is whether the public should bail them
out. We can always choose not to.
/end
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Fundies and trolls are cordially invited to
shove a wooden cross up their arses and rotate
at a high rate of speed. I trust you'll
be 'blessed' with a plethora of splinters.
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