Wednesday, January 5, 2011

Should Congress Ignore The Constitution?

The Constitution is for Congress, Too!

In an otherwise interesting and thought-provoking essay, Peter Beinart of the Daily Beast repeats a common misconception about the relationship between Congress, the Supreme Court, and the Constitution. Beinart asserts that Congress should ignore constitutional considerations when considering legislation, leaving the question of a statute’s constitutionality to the Supreme Court. Relying on this logic, he criticizes the Republican leadership in the House of Representatives for requiring members who submit proposed legislation to identify the source of Constitutional authority for the legislation in question.

"Now the Republicans running the House, under pressure from the Tea Party are requiring that every time a member of Congress introduces legislation he or she must certify that it is constitutional. Makes you wonder why conservatives care so much who sits on the Supreme Court—since they seem determined to usurp its job."

Contrary to Beinart's assumption, the Supreme Court is not the only branch of government with an obligation to enforce the Constitution. Simply put, Congress may not punt its responsibility to adhere to the document from which it derives its authority. No language in the Constitution grants courts a monopoly on the duty to adhere to our fundamental law. By its terms, the Constitution is the "Supreme Law of the Land" and thus, it seems, binding on all governmental actors, and not merely those who wear robes. Indeed, the First Congress debated the constitutionality of the proposed National Bank and the scope of the President's authority to remove Officers of the United States. Such debates were a waste of time if, as Beinart suggests, constitutional interpretation is the exclusive job of courts. Moreover, when justifying the institution of judicial review at the Pennsylvania Ratifying Convention, James Wilson, later a Supreme Court Justice, argued that a President could decline to enforce a law he believed to be unconstitutional and that, in the same way, judges could decline to enforce unconstitutional laws that came before them. It would be odd indeed if the President and the Courts where charged with adhering to the Constitution, while Congress was free to ignore it.

Also, as a practical matter, not all legislation comes before courts or, if it does, it does so decades after its enactment. The 20-year charter of the First National Bank expired before there was any judicial review of the Bank's Constitutionality. The Court only reached the question after Congress re-authorized the Bank. In such circumstances, failure by Congress to consider the constitutionality of the proposed legislation would have left the constitutional question to the President alone, who could veto or decline to enforce the statute on constitutional grounds. Finally, an expectation that Congress (and the President) will consider the constitutionality of legislation before passing, signing or enforcing it reinforces the liberty-enhancing aspect of the Separation of Powers, by ensuring that all three branches, elected or appointed in a different manner, agree that an law is constitutional before an individual is deprived of his or her liberty or property pursuant to the enactment.

Ironicially courts, the supposed repository of interpretive monopoly Beinart proposes, themselves have rejected this monopoly. The Supreme Court begins its judicial review of statutes passed by Congress by presuming such statutes Constitutional. As Justice Bushrod Washington (pictured above) put it in Ogden v. Saunders, 25 U.S. 213 (1827).

"It is but a decent respect due to the wisdom, the integrity, and the patriotism of the legislative body by which any law is passed to presume in favor of its validity until its violation of the Constitution is proved beyond all reasonable doubt. This has always been the language of this Court when that subject has called for its decision, and I know that it expresses the honest sentiments of each and every member of this bench."

Such a presumption only makes sense on the assumption that Congress considers the constitutionality of legislation before acting on it. Thus, Congress's failure to pass legislation because its members believe a proposed enactment to be unconstitutional is in no way a "usurpation" of the appropriate role of the Supreme Court in our constitutional system.

Despite this oversight, Beinart's essay is well worth reading. Among other things he challenges members of the "Tea Party" to reconcile their commitment to limited government with the sort of muscular foreign policy endorsed by modern conservatives, a foreign policy that consumes billions of dollars per year in discretionary spending on military operations in Iraq and Afghanistan, for instance, thereby increasing the deficit against which Tea Partiers inveigh. Beinart suggests that true concern for limited government should cause members of the Tea Party to rethink their acquiescence in the sort of foreign policy currently endorsed by the Republican Party.