Tag: courts

Yes, Virginia, Congresscritters Should Care About The Constitution

Newsweek has a stereotypical hit piece on the recent Republican Pledge to America. Ramesh Ponnuru notes a curious passage from the piece:

Not so harmless, however, is the promise to require every bill to be certified as constitutional before it is voted on. We have a mechanism for assessing the constitutionality of legislation, which is the independent judiciary. An extraconstitutional attempt to limit the powers of Congress is dangerous even as a mere suggestion, and it constitutes an encroachment on the judiciary.

Now, one shouldn’t expect too much from Newsweek—a magazine that quite literally isn’t worth the paper it’s printed on. But Slate‘s Dahlia Lithwick, who should know something about the Constitution given that she’s a legal correspondent also thinks there’s something weird about Congresscritters actually reading the Constitution.

Of course, that view is completely bonkers.

A Little Constitutional Law 101

Here’s why Congresscritters should care about the constitutionality of the bills they vote on: because they swore an oath to do that. Every member of Congress must take an oath of office. The oath states:

I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.

How can a Congresscritter “support and defend the Constitution” without the ability to interpret what the Constitution means? It’s rather difficult to argue that someone is supporting and defending a document when they are purposefully ignoring it.

This oath is required by Article VI of the Constitution, which requires all federal and state officeholders to support the Constitution. That means that Congresscritters have the power to interpret the Constitution. That means that the President has the power to interpret the Constitution. That means that state governors have the power to interpret the Constitution. In order to support the Constitution, you have to know what you’re supporting.

Not only that, but there’s nothing in the Constitution that gives the judiciary the sole right to interpret the Constitution. In fact, there’s nothing in the text of the Constitution that gives the judiciary the right to interpret the Constitution at all. The ability for the Supreme Court to declare a law unconstitutional (what we lawyers call “judicial review”) isn’t in Article III of the Constitution, or anywhere else. So where does it come from?

If you remember Marbury v. Madison from your high school civics class, good for you. That is considered the first time that the Supreme Court said that it had the power to strike down a federal statute for violating the Constitution. Marbury wasn’t decided until 1803, years after the Constitution was ratified. Now, what you learned in high school civics class isn’t entirely true—the Supreme Court was always intended to have the power of judicial review, and Marbury just made that practice explicit. (Oh, and another thing about Marbury: it may have been wrong. Marbury struck down parts of the Judiciary Act of 1789 as violating the Constitution on a debatable legal theory. But don’t try making that argument in court…)

The Supreme Court even recognizes that it isn’t the final and only arbiter of what’s constitutional and what’s not. The Supreme Court won’t decide certain kinds of cases that may implicate a constitutional issue under what’s called the political question doctrine. The Supreme Court won’t, and can’t, decide a hypothetical question about the Constitution. In order for the Supreme Court to be able to make a decision, there must be a “case or controversy” under Article III of the Constitution. The Supreme Court simply will not hear cases, no matter how important the Constitutional issue, unless there’s something actually at stake for real live parties.

That’s why the idea that the Supreme Court, and only the Supreme Court, has the right to interpret the Constitution is so screwy. The Supreme Court can’t determine whether a pending bill in Congress is constitutional or not. Congress can’t ask the Supreme Court to do that job for them. So what would Lithwick and the editors at Newsweek have Congress do—pass a bill they suspect is unconstitutional and then wait for the Supreme Court to strike it down? That’s just silly, and it would be a violation of the Oath of Office that every Congresscritter takes.

That theory is an example of two things: first, that some people who should know better don’t know much at all about the Constitution, even those who supposedly write about the courts for a livings. Secondly, it exposes the fetishization of the judiciary on the part of some on the left. Yes, the judiciary has an important function in society. I’m a lawyer, so without it, I’d have to do something that actually adds value to society. But the judiciary is part of three co-equal branches of government. The judiciary isn’t a super-legislature. It can’t make executive decisions. Its primary purpose is to provide a check on the other two branches. Many on the left don’t understand why the judiciary was supposed to be the “least dangerous branch” of government. They don’t understand the concept that the role of a judge is a limited one, and is sharply and absolutely proscribed by constitutional limits. They see the courts as instruments of social change, and that’s not the way the courts are intended to function.

The Pledge to America is right: not only does Congress have the power to interpret the Constitution, they have the obligation to do so. If they could not interpret the Constitution, they would be unable to protect or defend it. If Congress stops caring about the constitutionality of the statutes they pass, then our system of government is in a great deal of trouble.

Tyranny Of The Minority

Law professor Paul Campos takes a critical look at the Iowa Supreme Court’s recent decision upholding gay marriage. (The Court’s opinion is available here.) Campos finds that the legal reasoning behind the decision was lacking:

Stripped of its verbiage, the court’s opinion comes down to the following claims: First, it’s a bad thing for the state to treat people differently on the basis of sexual orientation, unless the state has a good enough reason. Second, the reasons the state gave for treating same sex-couples differently from opposite-sex couples in regard to marriage weren’t good enough.

That’s it. These conclusions might raise various questions in the mind of someone who hasn’t enjoyed the benefits of a legal education. Such as, what was the court’s basis for these claims? Is there anything specifically “legal” about these conclusions? And how did the judges figure this stuff out, especially given that it took more than a century before anyone noticed Iowa’s constitution contained this requirement?

The problem with the Iowa decision is that there isn’t a strong legal rationale for this decision. The Iowa Constitution cannot require the recognition of gay marriage because gay marriage was not acceptable at the time that the Iowa Constitution was written. In essence, the judges are reading their own personal feelings into the law. While the Iowa Constitution is more broadly worded than the federal Constitution, there is still no plausible argument that it was designed to allow for same-sex marriages. What the Iowa Supreme Court has done amounts to going back and changing the words of the Iowa Constitution to mean something that it never was intended to.

Even those who want gay marriage should be troubled by this. There are seven members of the Iowa Supreme Court. There are nearly 3 million Iowans. In a democratic state, 7 people should not be presumed to have the power to set sweeping social policy for the other 2,999,997 people.

Yet that is what happened. The Iowan people did not vote to have gay marriages recognized in their state. In fact, a clear majority of Iowans oppose gay marriage. Yet the voice of the people have been overruled by just 7 people. That is troubling, not only from a standpoint of separation of powers, but because it ultimately hurts the cause of gay marriage. The likely outcome of all of this will be another Prop 8, and even if the Iowa Constitution’s amendment process means that the vote won’t take place until 2012, having this decision essentially forced upon the people of Iowa will not make gay marriage more popular.

This is a clear case of judicial activism. Judges should follow the law, and avoid legislating from the bench. The legal case for gay marriage presented in this opinion is woefully thin—rather the judges decided to enforce a set of social norms on Iowans by their will rather than the legislative process. Even those who support gay marriage should be troubled by that. This is an example of the tyranny of the minority, where the few use judicial overreach to enforce their views in a way they otherwise could not. No matter what the outcome, that kind of circumvention of the democratic process is wrong. The very foundation of our government is based on fundamental values like separation of powers and the consent of the governed. The Iowa Supreme Court has made a sweeping change to Iowa’s social policies and laws without the consent of the people. If such a thing were to stand, it would mean that states are governed not by voters, but by the few.

Gitmo And The Question Of Terrorist Detainees

Jeffrey Toobin has a lengthy examination of Guantánamo Bay and the detention of people caught in Iraq and Afghanistan. The legal battles over the status of detainees continue, as the Supreme Court is set to release the latest opinion concerning detainee rights in Boumediene v. Bush sometime in the next few months.

The real question is what we do when and if Gitmo is closed down. Giving members of al-Qaeda access to US civilian courts does not at all work. A terrorist suspect cannot be given the same rights as a civilian criminal—it’s unworkable to argue that they should have the right to confront their accusers when their accusers might be deep-cover CIA agents actively working against al-Qaeda. There’s a quantitative difference between the sort of evidence used in a criminal trial and the evidence gathered on the battlefield. We certainly don’t want to reduce the standards for civilian trials to the level of evidence gathered on the battlefield—but it doesn’t make any more sense to demand that our armed forces play CSI on the battlefield.

It’s tempting to give these suspects over to their home countries—but if human rights are a serious concern, that would hardly be a good idea. Someone who is deported to a place like Algeria or Saudi Arabia won’t have to worry about waterboarding being torture—instead they’ll likely end up being tortured to death or at the very least treated far worse than they are at Gitmo. For all the hyperbole about Gitmo being “the Gulag of our times” that diminishes the real horrors of the average Third World prison where waterboarding is just the appetizer.

Toobin believes there may be a solution for this problem:

Even if the commissions can somehow begin, the larger question of what to do with the remaining detainees is, for now, unsettled. One response to that quandary is a controversial proposal, by the law professors Neal Katyal and Jack Goldsmith, that is attracting a great deal of attention in the small world of national-security law—and which may offer an electoral lifeline for the Republicans this fall.

Katyal and Goldsmith make unlikely allies. A law professor at Georgetown and former Clinton Administration official, Katyal won widespread renown when he argued and won Salim Hamdan’s case before the Supreme Court in 2006. Goldsmith is a former Bush Administration official who, despite leaving the government in 2004, in part over concerns about civil liberties in the war on terror, remains a strong national-security conservative. (He is now a professor at Harvard Law School.) But the two men shared a conviction that both military commissions and ordinary criminal prosecutions would be impractical for a few of those captured on distant battlefields. Together, they came up with an alternative: a national-security court.

According to their proposal, which was recently the subject of a conference sponsored by American University’s Washington College of Law and the Brookings Institution, sitting federal judges would preside over proceedings in which prosecutors would make the case that a person should be detained. There would be trials of sorts, and detainees would have lawyers, but they would have fewer rights than in a criminal case. Hearsay evidence may be admissible—so government agents could testify about what informants told them—and there would be no requirement for Miranda warnings before interrogations. Some proceedings would be closed to the public. “It’s a new system that’s needed only in extreme circumstances,” Katyal said. “It’s not a default option.”

Not surprisingly, civil libertarians do not like the idea. The problem is that their preferred solution of going through civilian courts simply does not work. Terrorism is not a crime, nor is it like ordinary warfare. Rather it is something that is sui generis, a category all to itself. Treating terrorism like a crime does not work, nor are terrorists properly “combatants” as defined by the Geneva Conventions. (The term “unlawful combatant” is not a term invented by Bush Administration lawyers but one that is inherent in international law.) The laws of war allow us to keep these people off the battlefield for as long as there are active hostilities—which in this war is not a definite term.

The overheated rhetoric from the civil liberties groups doesn’t help. Gitmo is not a “gulag” nor is it some legal black hole. We as Americans face a difficult problem that requires creative thinking—and instead we have the Gitmo issue being used as a political talking point. If we close Gitmo, we had better have a viable solution for what we’ll do with the people being held there. Trying them in civilian courts is not a viable option, nor does it seem likely that the Supreme Court will allow for the current system. At some point, there will need to be a compromise, but that will require all sides to work together rather than merely pointing fingers at each other.