Usually we think of the judicial branch as being responsible for interpreting the Constitution, but it really isn't that simple.
In the early days, many people thought the purpose of the Presidential veto was to prevent unconstitutional laws from being enacted. Andrew Jackson's veto of the 2nd Bank of the US was historic because he didn't make any such claim; he just didn't like the idea of the bank. Presidents have become key to the legislative process since then as they use their veto (or threat of a veto) to shape the law.
The GOP majority in the House has enacted a rule that requires bills to include some analysis as to why the bill is Constitutional. I have no objection to this in principle, even though it mostly reflects TEA party types who have a peculiar interpretation of the history of the Constitution. It seems to be a symbolic gesture. But the de facto meaning of the Constitution is affected by what Congress passes and gets away with. Few laws are actually challenged in court, and fewer than that are declared unconstitutional. So, what Congress does, while it is supposed to be Constitutional, ends up gradually morphing our understanding of what is and isn't appropriate to legislate about.
I don't believe the specific TEA party criticisms have a good grounding in history, but the notion that the Congress and the Presidency do things that might be unconstitutional, and some of these things are not overturned by the courts (for whatever reason), and therefore the boundaries of what is and isn't considered constitutional has shifted over time is a valid one.
For a look at some of the TEA party criticisms in the context of the Constitution's text, which is being read aloud on the House floor as I write this, see this snazzy NYT piece.
1 comment:
What I find most interesting, and most frightening, about this new requirement is the possibilities for precedent. As new laws with these Constitutional analyses are passed and NOT contested (as many laws are), the Constitutional analysis that accompanies these laws will become widely accepted. Today, the right to judge the Constitutionality is held exclusively by the Supreme Court. To me, it doesn't seem that unrealistic for the legislation's analysis to become widely accepted- much like the Court's analyses- which would, by definition, reduce the power of the Supreme Court. If the Court's opinions contradict the Legislators' opinions, whose opinion is "correct." Constitutional law is complex and full of fuzzy boundaries, and I sincerely hope this new process in the House, while possibly extremely beneficial in keeping legislation Constitutional, does not erode the power of the Supreme Court (already the weakest of the three executive branches).
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