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.