DC House Voting Rights Bill Fails To Move Forward in Senate, 57-42

Henry K Prempeh prempehe at shu.edu
Tue Sep 18 15:19:05 PDT 2007

Is there any difference--has there ever been--between what any one of 
these politicians thinks is "politically correct" and what s/he thinks is 
"constitutionally correct"?   If the distinction matters little 
(“sometimes”!) even to the most influential Article III judges, why must 
Article I politicians pretend to care? And, really, should they? 

Given Congress’ role in the constitutional amendment process and the fact 
that congressional statutes enter the courthouse with a certain 
presumption of constitutionality in their favor, should an Article I 
politician decline to vote for a bill solely on the grounds that s/he 
believes the bill (if enacted into law) to be unconstitutional, even if 
s/he favors the bill on policy grounds? 

Are such "upstream" (extrajudicial) calculations about the 
constitutionality of a bill better left to the Article II executive?  In 
any case, would these same politicians who voted against the DC House 
Voting Rights Bill ostensibly on constitutional grounds vote against  an 
“Anti-Flag Burning” Bill on the grounds that they know it to be 
unconstitutional?  I think not. 

H. Kwasi Prempeh
Associate Professor of Law
Seton Hall University School of Law
One Newark Center
Newark, New Jersey 07102-5210
(973) 642-8837

"John Bickers" <bickersj1 at nku.edu> 
Sent by: conlawprof-bounces at lists.ucla.edu
09/18/2007 05:43 PM

<CONLAWPROF at lists.ucla.edu>

RE: DC House Voting Rights Bill Fails To Move Forward in Senate, 57-42

But that "error" seems to happen often, and it may be logical within our 
system.  I had the good fortune of hearing a student ask a very gifted 
Senator a question that was precisely the one you raise: do you weigh the 
constitutionality of measures you are considering?
No, the response went, that really isn't our job, it is the Court's job.
My students and I always consider the alternate paths American history 
could have taken.  Jefferson, Lincoln, Jackson (half of Rushmore, and much 
of the paper money) did not hold to the view that the judiciary got to say 
what the Constitution meant for everyone else.  They seem to have lost, 
though, Prof. Tushnet, Dean Kramer, Attorney General Meese, etc. 
Don't we all now teach City of Boerne as the accurate state of the law? 
And if that is so, is the choice to ignore constitutionality arguments an 
irrational one?
John Bickers
Salmon P. Chase College of Law
Northern Kentucky University

From: conlawprof-bounces at lists.ucla.edu on behalf of Scarberry, Mark
Sent: Tue 9/18/2007 4:05 PM
To: CONLAWPROF at lists.ucla.edu
Subject: RE: DC House Voting Rights Bill Fails To Move Forward in Senate, 

One of the serious people who thinks it's constitutional is my Dean, who 
has a substantial Republican history. I don't think he (or the Senators 
who crossed the apparent "party lines") can be accused on this issue of 
being partisan. And I'm not singling out either party, though it seems the 
Democrats were more united in their view. 
My point was just that the Democrats mostly voted one way; and the 
Republicans mostly voted the other way. It seems unlikely that principled 
constitutional views on this issue follow such party lines so closely. 
I will admit to thinking that this is not a close case, especially after 
doing substantial historical work that will be in my article. So I suppose 
the tendency for Republicans to vote against the bill does not raise for 
me the same concerns that the near unanimity of the Democrats raises. That 
does not mean that I think Republicans are any more constitutionally 
principled than Democrats, in general. 
Perhaps some of the Senators did not think it was their business to make a 
constitutional judgment. In my view, that is a serious error.
Mark S. Scarberry
Professor of Law, Pepperdine University School of Law
Robert M. Zinman Scholar in Residence, American Bankruptcy Institute
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