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Respecting the Constitution (Reprise)
Monday, September 17 marks “Constitution Day,” the anniversary of date (September 17, 1787) that delegates at the Constitutional Convention completed their work in Philadelphia, adopting the proposed Constitution of the United States and sending it to the Congress and, eventually, to the states for ratification. Schools at all levels -- from elementary schools to colleges and universities -- across the country will be celebrating Constitution Day, many of them because they believe a law passed by Congress late in 2004 requires them to do so. As I’ve previously written (“The Unconstitutional Constitution Day Mandate,” Sept. 15, 2005), that federal law is blatantly unconstitutional. Congress abused its powers, legislating about a matter (education) that is not within the scope of national government powers as enumerated in the Constitution. And by inserting the requirement that institutions receiving federal funding must hold educational programs about the Constitution on or about September 17, Congress also is imposing an unconstitutional condition – attempting to dictate the content of speech – in violation of the free-speech guarantee of the First Amendment. How ironic that Congress chose to celebrate and honor the Constitution by violating it! But then again, as noted below, members of Congress regularly violate the Constitution – and the courts and the American people let them get away with it. Now, in arguing that the federal law mandating observance of Constitution Day is itself unconstitutional, I’m not arguing that Constitution Day should be ignored. On the contrary, I think it’s quite important that all Americans do observe Constitution Day as a significant anniversary and that schools do make a special effort to teach their students (and their faculty) about the Constitution, at least every September. (Arguably, though, they should be teaching about the Constitution every day – as I do in my U.S. constitutional history courses.) It should be done not because Congress says so, but because it’s the right and proper thing to do. As I noted in my 2005 essay, “Of course, all Americans ought to be familiar with the U.S. Constitution; it is the document that not only creates our national government but legitimizes it, by memorializing those powers that the people of the United States have authorized the national government to exercise – and by limiting the exercise of those powers (as well as the powers of the state governments), to protect individual rights.” Sadly, familiarity with the Constitution is sorely lacking in the United States today: both our government officials and the people generally are abysmally ignorant of the Constitution. Not only have we become unfamiliar with its provisions but we’ve also lost sight of its essential purpose – to limit the power of government. One result is that the Framers’ amazing achievement has become, arguably, a failure – for American government, especially at the national level, is far too big, far too intrusive into people’s lives, exercising powers that the Framers never expected the government to wield (and which the text of the Constitution was meant to preclude). Washington, Madison, Franklin, Jefferson, Adams – even Hamilton (with his “big government” views) – all would be appalled.
Contempt for the Constitution
The Framers’ generation would be appalled at the ignorance of, and the contempt for, their handiwork, the U.S. Constitution, that is displayed today by government officials – members of Congress, the President, the justices of the Supreme Court and other federal judges, and state and local government officials – as well as by the American people themselves. Members of Congress, who all take an oath to support the Constitution, are ignorant of it. The federal law imposing the unconstitutional Constitution Day mandate, sadly, is all-too-typical of Congressional disrespect for the Constitution. Measured by a proper reading of the text, the vast majority (probably something like 90%, I’d estimate) of all federal laws passed by Congress are unconstitutional. When an occasional member of Congress raises the question of constitutionality over a bill being considered by the House or Senate, the matter is seldom debated with seriousness; the Representatives and Senators by and large take the view that “it’s for the courts to decide,” abdicating the responsibility that their oath puts on them and instead passing the buck to the federal judiciary. Critics of President George W. Bush accuse him of unconstitutional acts, but their accusations primarily are based on mere partisan sniping rather than genuine concern for (or understanding of) the Constitution. Democrats who criticize the Bush administration for its actions in waging the war on militant Islamic terrorists are blind to the fact that virtually everything they criticize Bush for was attempted previously by the Clinton administration, at a time when the United States was not at war. Bush is no worse – but, sadly, neither is he much better – than his predecessors, whether Democrat or Republican, when it comes to his failure to follow the oath he took as president, to support and defend the Constitution. President Bush’s ignorance of and contempt for the Constitution is clearly illustrated by the unfortunate fact that he has rarely exercised his veto power (a power intended by the Framers to help prevent enactment of unconstitutional legislation) – despite the avalanche of unconstitutional bills passed by Congress over the past six years. Federal judges, who enjoy lifetime tenure – a gift bestowed by the Framers in order to help assure their independence from political pressures – have squandered the most important tool given them by the Framers: their authority to protect the Constitution by exercising the power of judicial review, the power to declare laws in violation of the Constitution to be null and void. Since the so-called “New Deal revolution” of the late 1930s, the justices of the Supreme Court and other members of the federal judiciary have allowed Congress to exercise virtually unlimited power to legislate on all sorts of matters. And they have protected individual rights sporadically, inconsistently, and selectively, exercising their judicial review power to invalidate federal or state laws only when certain rights that the judges favor are abridged. (Economic liberty and property rights are virtually ignored or are protected in so minimal a way as to make them virtually meaningless – as the Court’s controversial Kelo decision about eminent domain powers in 2005 so vividly illustrated. Even with regard to those rights that the Supreme Court generally protects quite broadly or liberally – First Amendment freedom of speech, for example – the Court’s decisions are riddled with inconsistencies because the justices create exceptions to allow government regulations of laws they think important. Hence, conservative justices have recognized the so-called “obscenity exception” to free speech, to allow government to legislate on matters of morality; left-liberal justices similarly have recognized exceptions for “commercial speech,” to permit government regulation of advertising, and for campaign finance regulations.) All the justices on the Court today, regardless their jurisprudential orientation – whether they are left-liberals (like Justices Stevens, Souter, Ginsburg, and Breyer), conservatives (like Chief Justice Roberts or Justices Scalia, Thomas, and Alito), or swing-vote “moderates” (like Justice Kennedy) – are guilty of “context-dropping,” when they interpret the Constitution. Even the best justice on the Court today – Justice Clarence Thomas, whom I’ve argued is the only one of the nine who truly understands the significance of the Tenth Amendment – at best gets it right only about half the time. (For more on the fallacy of “context-dropping” and on the importance of interpreting the Constitution contextually – and why both left-liberals and conservatives get it wrong – see my essay, “Interpreting the Constitution Contextually,” published in the October 2003 issue of Navigator, a publication of The Atlas Society/Objectivist Center.) State government officials, who under the Supremacy Clause, are also bound by oath to support the Constitution, are also largely ignorant of its provisions, particularly of the ways the document limits not only the powers of the states but also the powers of the national government. The Framers expected state government officials to be “jealous” of their powers and to look critically at the national government whenever it threatened to exceed its authority. Since the rise of the 20th-century regulatory/”welfare” state, however, state and local governments have become just as dependent on federal government spending programs as have irresponsible individual Americans, who look to the federal “nanny” to bail them out of their problems, even when those problems are of their own doing. (Consider, for example, the expectation that it’s the federal government – not state and local governments, nor the private sector – that ought to pay the costs of recovery from Hurricane Katrina. Or the costs of repairing or rebuilding the nation’s deteriorating bridges, following the collapse of the bridge in Minneapolis earlier this summer.) By vesting the power to select U.S. Senators in the state legislatures, the Constitution’s framers sought to give state governments an important check on federal powers. After the 17th Amendment removed that important check by making Senators popularly elected, it seems that the states have been reduced to nothing more than just another special interest group, another pig muscling for space at the federal trough (or, perhaps I should say, another piglet seeking to feed at the national mother-pig’s teat). Finally, it’s perhaps the American people who are most guilty of being ignorant of, and/or having contempt for, the Constitution. Their ignorance of our system of government was revealed by a Zogby poll in 2006 which showed, among other embarrassing results, that more Americans can identify two of the Seven Dwarfs (77 percent) than can name two of the Supreme Court justices (only 24 percent). More could name Larry, Moe, and Curly as the Three Stooges (74 percent) than could identify the legislative, executive, and judicial branches of the federal government (only 42 percent). Is it little wonder, then, that Americans who are so blithely unaware of the Constitution and of the government that it creates are also, by and large, apathetic about whether that government obeys the limits that the Constitution imposes on it? If “eternal vigilance is the price of liberty,” then, sadly, it seems that the bulk of the American people sold short, years ago.
The Constitution 101: A Short Primer
To help educate Americans about the Constitution, I offer the following key points, all of which were quite familiar to the Framers’ generation but which, unfortunately, have been forgotten by most Americans (even most professors of constitutional law) today:
· Government is dangerous – a heavily armed policeman, not a nanny.
The Framers’ generation understood that government, which by definition holds a monopoly on the legitimate use of force in society, is inherently dangerous. They understood what I call the “Lockean paradox” (after the late-17th-century English philosopher John Locke, who famously argued in his Second Treatise on Government that government exists in order to better secure individuals’ natural rights and that it owes its legitimate powers to the consent of the governed): the paradox is that government, the very institution created in order to secure our rights, also poses the greatest danger to them. A quotation commonly (but mistakenly) attributed to George Washington states, ““Government is not reason, it is not eloquence. It is force. Like fire, it is a dangerous servant and a fearsome master.” Although there is no record of Washington having written this, it is a sentiment with which he would have agreed. The fire metaphor was understood by America’s founders; it was used in Cato’s Letters, English radical Whig political essays from the 1720s with which the Patriot leaders of the American Revolution were quite familiar. If the comparison to fire does not move you, consider an even more apt metaphor: government is like a loaded gun, pointed at your head. Whenever anyone says “There ought to be a law,” what they’re really saying is that we should be willing to use the coercive power of government – the power legitimately to use force, to literally hold a loaded gun to people’s heads – in order to force them to do something or to refrain from doing something.
· The U.S. Government has limited powers, enumerated in the Constitution.
The key feature of the national government under the U.S. Constitution is that it is a government of limited powers, enumerated in the Constitution. The document memoralizes the powers that the people of the United States (that is, the people of the several states that comprise the United States) have consented to delegate to the national government. As the first sentence of Article I explicitly states, the national government has only those powers “herein vested.” Thus, the first and basic question to ask whenever the constitutionality of any law passed by Congress is considered is, Does the Constitution give Congress the authority to legislate on this matter? Look to the text of the Constitution – principally to Article I, Section 8, which lists the legislative powers of Congress – and if the power isn’t there, Congress doesn’t have it. A whole host of matters over which Congress has legislated since the late 1930s – laws regulating labor, farming, and education, as well as Social Security, Medicare, and all other so-called “entitlement” programs, including federally-guaranteed student loans – are all matters not found in the Article I, Section 8 list (or elsewhere in the text of the Constitution) and therefore aren’t legitimately subjects of federal legislation. (Courts may hold otherwise, as do politicians of both parties who legislate on these matters because they’re popular with their constituents, the people. But they’re all wrong: such matters are not “regulations of commerce among the states,” nor are they legitimate exercises of Congress’s taxing power, nor are they “necessary and proper” for Congress to exercise any of its legitimate enumerated powers, as all these clauses in Article I, Section 8 should properly be considered.)
· The Tenth Amendment means something (and it’s not just merely a “truism”).
The Tenth Amendment provides: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” It means exactly what it says: that the national government’s powers are limited to those “delegated” to it by the Constitution; and that everything else is either a power reserved to the States or a “power” retained by the people (which is another way of saying it’s a power denied to government at any level). The Amendment simply affirms this fundamental principle that the national government is one of limited, enumerated powers. It was added to the Constitution, along with the other Bill of Rights amendments in 1791, in order to protect against one of the chief dangers that opponents of the Bill of Rights had raised during the Constitution’s ratification. They feared that adding particular rights guarantees to the Constitution might undermine its enumerated-powers scheme. For example, Alexander Hamilton had asked, “Why should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?” Hamilton’s fear was that by specifying certain things (such as abridging freedom of press) that the national government could not do, a bill of rights might “afford a colorable pretext” for the government to claim more powers than it was granted under the Constitution’s enumeration. To guard against this danger, James Madison – the principal architect of the amendments that later became the Bill of Rights – crafted the Tenth Amendment, to reaffirm the principle of enumerated powers. Thomas Jefferson called the Tenth Amendment “the foundation of the Constitution.” As he understood it, the amendment provided a rule for strictly interpreting the power-granting clauses of the Constitution. If a given power was not found among those enumerated in Article I, Section 8, Congress could not exercise it. “To take a single step beyond the boundaries thus specially drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible of any definition,” he wrote in 1791. For its first 150 years or so, the U.S. Supreme Court understood that this was the purpose of the Tenth Amendment. For example, in the early 20th century it declared unconstitutional Congress’s attempts to use the interstate commerce or taxing powers to prohibit child labor in the United States – not because the justices approved of employing young children in factories, but because they understood that the authority to enact such labor laws was not among the enumerated powers of Congress and therefore was reserved to the states, under the Tenth Amendment. Similarly, in the mid-1930s, the Court declared unconstitutional such federal New Deal measures as the Agricultural Adjustment Act (which paid farmers not to grow certain crops, in order to artificially inflate their prices), on the grounds that agriculture also was not among the enumerated federal powers and therefore also was reserved to the states. In other words, the justices were enforcing the Tenth Amendment, as it was meant to be enforced, as a rule of interpretation limiting the federal government to those powers enumerated in the text of the Constitution. Unfortunately, as part of the so-called “New Deal revolution” on the Supreme Court in the 1930s, the justices ceased to enforce the Tenth Amendment. One of the pro-New Deal justices on the Court declared the Amendment to be nothing more than a meaningless “truism” – meaningless, because the newer justices appointed to the Court by FDR no longer intended to enforce it. In recent years, with more conservative justices comprising sometimes a fragile 5-4 majority on the Court (during the years when William Rehnquist was chief justice and now, under Chief Justice Roberts), the so-called “New Federalism” decisions of the Court have breathed some new life into the Tenth Amendment, which is once again occasionally cited in the Court’s decisions. Sadly, however, the conservative justices tend to misunderstand the Tenth Amendment as nothing more than a protection of federalism – of state government powers – and not, as the Framers meant it to be, as a protection of individual rights against the powers of the national government. Thus, as I discuss more fully in my previous entry, “The Constitution’s Forgotten Foundation” (Sept. 13, 2004), the Tenth Amendment has yet to be fully rediscovered.
· The Ninth Amendment means something (and it’s not just an “inkblot”).
The Ninth Amendment provides, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” It was the Tenth Amendment’s companion provision, also originally drafted by James Madison, to solve another danger that opponents of a Bill of Rights identified. They feared that the addition of a bill of rights, by listing particular rights, would result in the loss of those rights that were not listed. Among these rights were the fundamental (and natural) rights of life, liberty, and the pursuit of happiness. Consider the right of liberty, as the Framers understood it: the natural right of individuals to be free to act as they wish, limited only by the law of nature, which (according to John Locke) was reason, which taught that people ought not to exercise their freedom in ways that harm others in their life, health, liberty, or property. In other words, the Framers understood the natural right to liberty as the right to act as one wishes, consistent with the equal right of others and provided one does not harm others (what modern libertarian philosophers call the “no-harm” principle, or the “non-aggression” principle, and what the great 19th-century British philosopher Herbert Spencer called the Law of Equal Freedom). The Ninth Amendment thus has a definite purpose – to protect unenumerated rights, which might otherwise have been lost when the Bill of Rights was added to the Constitution. Furthermore, it means exactly what it says: that the enumeration of rights in the Constitution, in the Bill of Rights and elsewhere in the document, “shall not be construed” by the courts (because it’s the courts that “construe” or interpret the Constitution) to “deny or disparage” other rights (that is, unenumerated rights) “retained by the people.” It is a command to the judges to respect (that is, to protect) all the genuine rights that individuals have, whether or not they’re mentioned in the Constitution. The Amendment recognizes another fundamental principle well understood by the Framers: that the powers of government are few, limited, and well-defined (or at least that’s as they ought to be), while the rights of individuals (including their fundamental right to liberty) are many, almost unlimited (limited only by the natural law principle noted above), and incapable of precise enumeration. In other words, the Framers understood that government powers were the exception but that individual rights were the rule; to borrow an apt metaphor coined by political scientist Stephen Macedo, the powers of government are like islands surrounded by a sea of rights. Notwithstanding its clear history, purpose, and meaning, the Ninth Amendment was famously (or perhaps I should say, infamously) compared to an “inkblot” – something that’s found on the text of the Constitution but which is indecipherable – by Robert Bork, during the Senate confirmation hearings for his nomination to the Supreme Court in 1987, when Senator Joe Biden asked him his view of the Ninth Amendment. Many conservatives, like Bork, regard the Ninth Amendment as meaningless and consider it an abuse of power – a form of judicial activism – for judges to protect such unenumerated rights as the right to privacy. Hence, they have criticized Supreme Court decisions in the modern era protecting privacy rights – including Griswold v. Connecticut (1965) (declaring unconstitutional a state law criminalizing birth-control devices), Roe v. Wade (1973) (declaring unconstitutional state laws banning abortion), and Lawrence v. Texas (2003) (declaring unconstitutional state laws criminalizing sodomy) – as illegitimate decisions by “activist” judges. Conservatives are guilty of having a blind spot for the importance of the Ninth Amendment, just as left-liberals are guilty of having a blind spot for the importance of the Tenth. But, just as conservatives have an incomplete understanding of the Tenth, left-liberals have an incomplete understanding of the Ninth. Yes, it should protect unenumerated rights, including what is regarded today as the constitutional right to privacy. But it should be construed to protect other fundamental unenumerated rights as well, including economic liberty – such as the right to “liberty of contract” that the Supreme Court protected in the early 20th century in such landmark decisions as Lochner v. New York (1905) (declaring unconstitutional a law limiting the hours of work for bakers) and Adkins v. Children’s Hospital (1923) (declaring unconstitutional a minimum-wage law). Conservatives’ blindness to the Ninth Amendment, like left-liberals’ blindness to the Tenth Amendment, illustrates how both sides in the modern debate over constitutional interpretation fail to fully understand the Constitution. (For more on this, see my 2003 essay on “Interpreting the Constitution Contextually.”)
· The Fourteenth Amendment really does impose important limits on the powers of the states.
Another erroneous view held by some conservatives is that the Supreme Court has abused its power when it interpreted the Fourteenth Amendment to apply the federal Bill of Rights against the states, what legal scholars call the “incorporation doctrine.” They argue that the Fourteenth Amendment had a narrower purpose and was not meant to undermine state government’s regulatory power, the so-called “police power” of the states. Contrary to this view, the Fourteenth Amendment really was meant to impose important limits on state police powers. The Amendment was one of three great amendments added to the Constitution at the end of the Civil War. (The previous amendment, the Thirteenth, abolished slavery and involuntary servitude in the United States. The subsequent amendment, the Fifteenth, guaranteed that the right to vote shall not be abridged on account of race.) The Fourteenth Amendment was added to the Constitution, in part, to allow Congress to pass laws like the Civil Rights Act of 1866, which was meant to protect the fundamental rights of black persons – “freedmen,” or the newly-emancipated slaves – from state laws such as the infamous “Black Codes” passed by Southern state legislatures immediately after the Civil War. Those Codes denied black persons many of the fundamental rights held by white persons, including rights of economic freedom (such as the right to enter into contracts and to compete in the marketplace), the right to keep and bear arms for self-defense, and civil rights like the right to sue in court or to serve on juries. The text of the Fourteenth Amendment’s most important provision, Section 1, however, went much farther than protecting the rights of freedmen against discriminatory laws. Rather, the language added to the Constitution significant limits on the power of the states, providing: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” These were significant new limits imposed by the Constitution on the power of the states because, as the Fourteenth Amendment’s proponents in Congress understood, the recent, post-Civil War experience showed the tendency of state governments to abuse their powers, to the detriment of individuals’ rights. Sources showing the contemporary understanding of the Fourteenth Amendment -- the debates in Congress over the proposed amendment in 1866 and the debates in the state legislatures, as the Amendment was ratified during the years 1866-68, as well as debates in Congress as it considered laws exercising its Section 5 power to enforce these limits on the states – all lend support to the view that the Amendment was indeed meant to impose significant limits on state police powers. The “privileges or immunities of citizens of the United States” were meant to include all the specific rights protected by the Bill of Rights, as well as other fundamental rights, including the natural rights to life, liberty, and the pursuit of happiness, and economic rights such as the right to pursue a livelihood and the right to compete in a free marketplace. The “due process” clause was meant to protect individuals’ rights to life, liberty and property against all forms of deprivation by state governments, not only by court order or other acts of government officials, but also by legislation (in other words, as modern legal scholars would say, to protect these rights substantively, as well as procedurally). And the “equal protection” clause was meant to prohibit all sorts of “class legislation,” laws that confer special benefits or impose special burdens on particular classes or persons, as opposed to general laws equally applicable to all (which was the 19th-century understanding of “equal protection of the laws”). The Supreme Court has erred in its interpretation of the Fourteenth Amendment, but its error has been not in interpreting its provisions too broadly, as conservatives argue, but rather in interpreting its provisions too narrowly. The Court’s infamous decision in the Slaughterhouse Cases (1873) (upholding a Louisiana law giving one company a monopoly over the livestock slaughtering business in the New Orleans area) literally eviscerated, or gutted, the key substantive provision of Section 1, the “privileges or immunities” clause, making it virtually meaningless. After having for many years refused to incorporate any of the federal Bill of Rights provisions into the Fourteenth Amendment (through the due process clause), the Court starting in the late 1930s – at the same time as the “New Deal revolution” – began its modern practice of “selective incorporation.” Most of the rights protected by the federal Bill of Rights are now understood by the Court as applicable to the states through the Fourteenth Amendment, but some valuable rights (the Second Amendment right to keep and bear arms, the Fifth Amendment right to a grand jury indictment, and the Seventh Amendment right to a jury trial in civil cases) have yet to be incorporated. And rather than being interpreted as a prohibition on all class legislation (as it was intended), the Equal Protection Clause is applied by the modern Court only as protection against certain forms of discrimination, under varying standards (“strict scrutiny” if it’s racial discrimination but only “intermediate scrutiny” if it’s sex-based discrimination, and mere “rational basis” review if it’s any other form of discrimination) – wholly artificial rules created by the justices to rationalize their inconsistent enforcement of the Fourteenth Amendment’s limits on state power.
· Separation of powers is the chief organizing principle of the federal government.
Drawing upon the experience of constitution-writing at the state level, during the decade-long period before 1787 when the earliest state constitutions were adopted, the Framers of the Constitution employed various structural devices designed to help limit the powers exercised by the national government, to help prevent them from being abused. One of the most important of these devices was the principle of separation of powers. The doctrine of separation of powers recognizes that there are three essential functions of government: the legislative, or law-making, power; the executive, or law-enforcing power; and the judicial power, to interpret and apply the law in resolving disputes before the courts. Under the principle of separation of powers, each of these three functions is assigned to different groups of government officials, the three so-called “branches” of government. The reason for this is to help prevent the abuse of power, the theory being that these powers of government are less likely to be abused – and that the government itself is less likely to be taken over by a despot – if they are placed in separate hands. Separation of powers is the main rule for the structure of the national government created by the Constitution. That’s evident in the way the Framers organized the document, according to this principle. Article I deals with the legislative powers, and the first sentence of Article I, Section 1 vests those powers in the Congress; Article II deals with the executive powers, and the first sentence of Article II, Section 1 vests those powers in the President; and Article III deals with the judicial powers, and the first sentence of Article III, Section 1 vests those powers in the Supreme Court and other federal courts. Whenever any branch of government (whether it’s Congress, the President, or the courts) exercises powers assigned by the Constitution to another branch (other than those exceptions, called checks & balances, specifically permitted by the Constitution), the principle of separation of powers – and hence, the Constitution itself – is violated.
· Checks & balances are distinct from the separation of powers.
In designing structural devices to help prevent the powers of the national government from being abused, the Framers of the Constitution did not stop with the principle of separation of powers. They supplemented it with the distinct (and, in fact, complementary) principle of checks and balances. Although many people today use the term “checks and balances” rather loosely, to refer to any sort of device that helps limit power (and often using it as if it were synonymous with separation of powers), checks and balances have a precise technical meaning quite distinct from separation of powers. Checks and balances, in fact, are exceptions to the principle of separation of powers: they are instances where powers that would have been allocated exclusively to one branch, under pure separation-of-powers theory, are shared with another branch, to provide a “check” against corruption or abuse of power. Consider the two most obvious examples: the presidential veto and the Senate’s power to confirm presidential appointments. Under a government organized purely according to the principle of separation of powers, all the legislative powers would be vested exclusively in the Congress. Under Article I of the Constitution, however – specifically in Article I, Section 7, the so-called “presentment clause” of the Constitution – the President is given a share in the law-making power: all bills that pass both houses of Congress are to be presented to the President, who may either sign them into law or veto them (by returning them to Congress with his objections). The presidential veto power is limited; bills vetoed by the President may still become law if passed again by each house of Congress with at least a two-thirds vote, to “override” the President’s veto. Thus, the President’s limited veto – his share in the process by which laws are made – is an exception to the main rule stated in the first sentence of Article I, vesting legislative powers in Congress. Similarly, although the main rule of Article II vests executive powers in the President, the second section of Article II qualifies the President’s power to make appointments (an executive power) by sharing it with one house of Congress, the Senate, which is given the power to give “advise and consent” – in other words, to confirm – presidential appointments. Thus, the Senate’s confirmation power, too is an exception to the main rule stated in the first sentence of Article II, vesting executive powers in the President. As exceptions to separations of powers, the main rule of the Constitution, checks & balances ought to be interpreted strictly, in accordance with the Framers’ purpose in adding them to the Constitution, as additional safeguards against the abuse of power. Thus, as all the U.S. presidents recognized until the 20th century (when, after FDR, presidents began using the veto for political purposes), the presidential veto should be used only against unconstitutional bills, not bills that the President merely disagrees with on policy grounds. When presidents use the veto for political purposes, they abuse the power the Constitution assigned them. Similarly, the Senate’s confirmation power was designed to help protect against presidents abusing the appointment power by nominating persons who are corrupt or unfit for office. When the Senate uses its “advise and consent” power to thwart the appointment of qualified persons for mere political reasons – for example, when Senate Democrats filibuster and thus block the confirmation of conservative judges nominated by President Bush – the Senate abuses the power the Constitution assigned it. (For more on these points, see my essays “Clinton’s Vetoes Undermine the Constitution” (June 1996) and “Confirmation Abuse” (Sept. 5, 2005).)
· The Supreme Court does not have unlimited authority to decide constitutional questions.
The principle of separation of powers limits all branches of government, including the judicial branch. Part of the judicial power that the Constitution assigns to federal courts is the power of judicial review, the power to decide whether laws (or other acts of government) are constitutional. As explained both by Alexander Hamilton in Federalist No. 78 and by Chief Justice John Marshall in his opinion for the Supreme Court in the classic case of Marbury v. Madison (1803), the power of judicial review flows naturally and necessarily from the courts’ general power to determine cases or controversies before them; for in adjudicating disputes, courts must identify and apply the law. If a law passed by Congress or a state legislature conflicts with the higher law of the Constitution, courts must follow the Constitution rather than the conflicting statutory law. When they do this, we say they “strike down,” or “invalidate,” the law as unconstitutional. This results necessarily from the so-called Supremacy Clause, of Article VI of the Constitution, that provides that the Constitution is “the supreme law of the land.” The power of judicial review is not unlimited, however, for the simple reason that not all kinds of disputes are “justiciable,” that is, capable of being decided by the courts. To help avoid improper exercise of their judicial power, the U.S. Supreme Court and other federal courts have long followed a policy of self-restraint that is commonly called the “political questions” doctrine. Under this doctrine, which is more properly called the nonjusticiability doctrine, courts have abstained from deciding certain kinds of questions, those that are “political” in the sense that they require judges to make policy determinations – making value judgments, or weighing various factors that are more properly considered by legislative bodies in their deliberations – determinations that judges are not equipped to make, either constitutionally or professionally. Today, in the debate over constitutional questions, both left-liberals and conservatives tend to criticize as “activist” any judicial decisions with which they disagree. Properly speaking, however, “judicial activism” really is an abuse of the judicial review power that occurs when judges follow their own subjective views, rather than objective legal principles, to decide cases. (For more on this, see my previous entry “Judicial Activism, Real and Imagined,” April 4, 2005.) When judges try to decide nonjusticiable matters, or “political questions,” they’re also guilty of being activist – and of abusing their powers. These sort of “activist” court decisions are illegitimate because judges, by attempting to decide nonjusticiable “political” questions, really are usurping the legislative, or law-making, power that the Constitution assigns to another branch of government. (A well-recognized example from U.S. constitutional history is the Supreme Court’s decision in the Dred Scott case in 1857, when the Court attempted to resolve the controversial – and nonjusticiable – question of the status of slavery in the western territories by holding, under the guise of interpreting and applying the Fifth Amendment, that Congress was prohibited from banning slavery in the territories. In his first Inaugural Address, President Abraham Lincoln quite properly criticized this decision and declared that it would not be binding upon either him, as president, or upon the Congress, in the exercise of their constitutional powers.) Thus, it is possible for the Supreme Court or other federal courts to violate the Constitution, by issuing unconstitutional decisions. When courts abuse their powers, their decisions ought to be regarded as null and void – that is, as not binding on the other branches of government – just as when the other branches violate the Constitution, the courts regard their actions as not binding, either. That too follows from the Constitution’s Article VI Supremacy Clause. There is another way in which the Court’s authority to decide constitutional questions is limited. The power of judicial review ought to be distinguished from what some commentators have called “judicial supremacy,” the notion that the Supreme Court is the final arbiter of all constitutional questions. Although that notion has been accepted as a virtually unquestioned dogma of political faith, at least since the early 20th century, it was not universally recognized in early American history. Strong U.S. presidents – including not only Abraham Lincoln (as noted above), but also Andrew Jackson and Thomas Jefferson – directly challenged the authority of the Supreme Court when they believed it had abused its power. As I discuss in Chapter Nine of my book The Constitutional Thought of Thomas Jefferson (University of Virginia Press, 1994), Thomas Jefferson adhered to his so-called “tripartite doctrine,” that each of the three branches of the government ought to decide what the Constitution means, in exercising those powers that the Constitution assigns to them. When the branches disagree in their interpretation of Constitution, the disagreement should be resolved by the only truly ultimate arbiter of constitutional questions, according to Jefferson: the people of the United States. Perhaps it’s time that we take back the monopoly power that has been given to the Supreme Court by the other branches of government, who have abdicated their authority to interpret the Constitution and instead have deferred completely to Court’s interpretation, whether right or wrong. (And, throughout U.S. constitutional history but especially in the past 70 years, the Court frequently has been wrong.) Better yet, it’s time that the American people themselves take back the Constitution. But, first, they ought to read it and try to understand it.
| Link to this Entry | Posted Thursday, September 13, 2007 | Copyright © David N. Mayer |
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