The Law

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.


Why Kos Is Boring

Markos “Kos” Moulitsas has his first Newsweek column out today. Kos went with the surprising route, choosing a topic that broadened his reach to moderate voters and demonstrated his command of the issues and his willingness to listen to all sides.

Or not…

Instead, he did what Kos does best. Actually, all that Kos does: he attacked George W. Bush. His advice to Democrats? Run against the guy whose name isn’t going to be on the ballot. The same strategy of negativity and partisan idiocy that failed in 2004. In a climate where people are sick to death of the idiotic partisan in-fighting in Washington, the advice of Kos is to give them some more.

It’s the same old partisan hackery that makes The Daily Kos unreadable for anyone who doesn’t already drink the Kool-Aid. There’s no substance, no unifying theme, no desire beyond the mere desire for political power. The end that matters is winning elections. What’s the theory of government? Kos’ “libertarian progressive” meme was so intellectual inherent that most bong-addled freshman poli-sci students could see right through it.

Kos’ argument: that advocating a smaller government means that you hate government. Of course, his thesis is incoherent: since when has George W. Bush been an anti-government ideologue? Many prominent conservatives dislike him precisely because under his watch government has grown dramatically. His argument is that Democrats love government. Which is a great message, except it goes against the mainstream of American politics. His message of Democrats being the party of Big Government plays right into GOP hands. There’s no reason why competent government must mean more government, and given the incompetence of the Democratic field and the Democratic Congress, what Kos is pushing isn’t selling very well.

Compare Kos’ mount of anti-Bush red meat to Karl Rove’s inaugural column. Rove’s column spends more time talking about how a Republican challenger can define himself against Hillary than merely bashing the Democrats. Rove is also a political flack, to be sure, but at least he’s a political flack who knows that the way to win in politics isn’t just to bash the other side. In contrast, Kos comes off as the petulant kid who thinks he’s a political wunderkind but doesn’t have the skills to prove it.

Kos just comes off as another hyperpartisan hack, an attack dog for hire that’s brilliant at preaching to the choir, but doesn’t know how to be persuasive. He’s emblematic of what’s wrong with the Democratic Party these days: reflexively partisan, ideologically adrift, and increasingly extreme. Markos Moulitsas thinks he’s some kind of left-wing Karl Rove, but in comparison with the real thing, he’s just another shrill amateur.


Kos v. Rove

Newsweek has announced that Karl Rove will be the right-wing answer to Markos “Kos” Moulitsas.

It’s actually an interesting matchup, all things considered. Kos’ raison d’être is to get Democrats elected. He’s a party hack. Karl Rove’s job has been to get Republicans elected. He could be fairly called the same thing. On that score, it’s a relatively even game.

On the other hand, Karl Rove has years of political experience, is a genius when it comes to the tactics and skills needed to organize a campaign, and is a decent enough writer. Kos, by any real comparison, is an amateur whose been able to raise some decent amount of money, but whose political achievements are minimal at best. Karl Rove defeated John Kerry, a well-financed national candidate. Kos has at best thrown money at candidates who were likely to win anyway. About the only credible claim he can make for political success is supporting Jon Tester in Montana, and even then it was because Tester was running against a very vulnerable Republican.

The other reason why Kos is on the losing end of this deal is because Karl Rove knows how to argue. Politics isn’t about screaming and yelling and declaring your position to be the only right position and treating all who disagree as heretics. It’s about being persuasive and framing issues. Kos has never been able to do that. He preaches to the choir, and that’s why his appeal is limited to only those who already agree with him.

That’s the essential problem with Newsweek’s matchup. Setting up two partisans and letting them fight gets boring after a while. Is either of them going to say anything surprising? Would either of them go “off script?” It doesn’t seem likely.

A battle between someone like Jonah Goldberg and Peter Beinart is interesting because both of them share some principles and are willing to discuss real issues. A matchup of someone like Joshua Micah Marshall versus John Hinderaker would be fascinating because both are partisans, but they’re intelligent partisans who aren’t afraid to get into deeper discussions than “my candidate is good and yours sucks.”

While the Kos/Rove matchup could be interesting, Newsweek is taking the easy way out. After a while, the same old fights get boring. Then again, I suspect that if this works it will be because of the NASCAR effect: people will watch to see what happens when somebody ends up crashing all over the guardrail. There’s a certain amount of appeal in that, but Crossfire this ain’t…

UPDATE: Power Line has the best take on the pairing:

The two are perfectly matched. Rove led the Republican party to ascendancy in the state of Texas. He then helped steer George W. Bush to the Republican presidential nomination in 2000, and managed Bush’s two successful general election campaigns.

Markos helped spearhead Howard Dean’s march to the Democratic nomination in 2004. Then, in 2006, he was instrumental in unseating Sen. Joseph Lieberman. More recently, Markos was the first to realize that Mark Warner would emerge as the frontrunner for the 2008 Democratic nomination.

Apart from ideology, the only difference I perceive is that Rove surely writes better than Markos.



Inmates Given Keys To Asylum

Apparently Markos “Screw ‘Em” Moulitsas has been hired as a columnist by Newsweek.


Is Newsweek really hurting for writers who hurl invective like a monkey flings feces? Who has the writing talent of a college freshman? Who is the very model of a partisan hack? Exactly what do they gain?

If Newsweek wanted an interesting, insightful and worthwhile liberal to contribute something meaningful to their publication, there are plenty of them out there. (Although, to be frank, they’re not hurting for left-wing voices.) At the very least, there are some thougtful liberals like Joshua Micah Marshall who would be more deserving.

They’re apparently going to “balance” Kos with a right-of-center blogger, yet to be announced. Then again, I doubt anyone would want the job of “balancing” Kos unless it’s by giving him medication. I’m not sure of a writer whose name doesn’t rhyme with Fan Molter that even comes close to the level of pure ideological spite and relentless cheerleader-ism that Kos spews on a daily basis.

Then again, it’s probably good news for the Republicans in the race—the more exposure people like Kos get, the more people see the true face of the Democratic Party. Given Kos’ ability to put his foot firmly in his mouth and then berate anyone pointing it out, giving him a larger voice in the media has got to have reasonable Democrats cringing.