Legal Commentary

Dahlia Lithwick: It?s ?Weird? for a Senator to Consider the Constitutionality of Legislation

By David Bernstein

Lithwick in Slate:

O?Donnell explained that ?when I go to Washington, D.C., the litmus test by which I cast my vote for every piece of legislation that comes across my desk will be whether or not it is constitutional.? How weird is that, I thought. Isn?t it a court?s job to determine whether or not something is, in fact, constitutional? And isn?t that sort of provided for in, well, the Constitution? 

Short answer: Senators swear an oath to uphold the Constitution. Of course they are obligated to determine whether a bill they are considering is constitutional. Where did Lithwick get the idea that courts, and only courts, should be concerned with the constitutionality of legislation?

Somewhat longer answer: The Constitution doesn?t vest the authority to determine the constitutionality of legislation in any single branch of the government. In fact, not only does the Constitution not grant the judiciary the exclusive power to consider the constitutionality of legislation, it doesn?t speak of judicial review at all. I think that judicial review is implicit in the Constitution, for the reasons stated by Chief Justice Marshall in Marbury v. Madison. But there is no contradiction between allowing the Court to exercise its authority in its own sphere (i.e., when a lawsuit comes before the Court) while the other branches determine the constitutionality of legislation in their own spheres. At least since the late 1950s (Cooper v. Aaron), the Supreme Court has asserted that if an elected official defies a Supreme Court precedent, that official is violating his oath to uphold the Constitution. But even if we accept that it would be a dereliction of a Senator?s duty to vote for a law that he knew the Court would deem unconstitutional, I don?t know of any reason why a Senator should vote for a law that he deems unconstitutional, even if the Supreme Court would uphold such a law; no defiance is involved in such an instance, just an independent assessment of constitutionality. Regardless, it?s hardly the case, as Lithwick suggests, that a Senator should ignore constitutional issues, vote completely based on policy preference, and wait for the courts to sort things out.

H/T: Reader SteveMG.

UPDATE: I should add that in the Supreme Court itself has virtually delegated the determination of constitutionality of various federal legislation to Congress: see the Commerce Clause, the General Welfare Clause, and the non-delegation doctrine. The constitutionality of legislation enacted under any of these provisions generally depends on whether Congress believes it has complied with the provisions (though there has been a wee bit of ?backsliding? in the Commerce Clause realm, over the objections of four Justices).

FURTHER UPDATE: Further wisdom from Lithwick:

It came to a surreal head when Sen. Chuck Grassley asked Kagan directly whether ?the Second Amendment codif[ied] a pre-existing right or was it a right created by the Constitution???a dog whistle, I gather?to the ?Christian Reconstructionist? argument that the right to bear arms comes from God. I guess by way of Moses and Joshua.

Huh? It?s pretty obvious to me that Grassley is referring to one of two possibilities: (1) More likely, the question of whether the Second Amendment codified a pre-existing Anglo-American common law right to bear arms; or (2) Less likely, but still possible, the question of whether the right to bear arms is a ?natural right?. Even if it?s the latter, you hardly have to be a Christian Reconstructionist to believe in natural rights; the framers did, and none were. Indeed, you don?t even have to believe in God; I have quite a few libertarian acquaintances who believe in natural rights, and none of them are theists.

Full post as published by The Volokh Conspiracy on September 22, 2010 (boomark / email).