Newsweek, the Republican "Pledge, " and the Constitution outside the courts
whoooo26505 at yahoo.com
Tue Sep 28 21:40:56 PDT 2010
1. When the Congress makes a judgment about the constitutionality of its own
legislation, is it behaving as a legislator or as a judge? And what role are the
legislators purporting to undertake when carrying forth this
ritual (representative, politico or trustee)? Why not have the legislators swear
to be in conformity with the Declaration of Independence, instead?
2. Do Republicans believe that America invented American Constitutionalism, or
do they think Americans originally invented a parliamentary system? Related
question: do they believe the Anti-federalists or confederate governments were
historically wrong -- or do they believe it is just a matter of
"values?" Wouldn't one have to be a cultural relativist to entertain some of
3. On the logic of separation of powers. Let's say Democrats argue this: The
Court has the power to pass legislative judgments when deciding cases, because
the Congress has the power to consider constitutional ones when passing
legislation. Translation: no more Montesquieu. Would republicans who want
Congress-constitutionalism also allow for Court-legislativism?
Regards and thanks.
Dr. Sean Wilson, Esq.
Wright State University
Personal Website: http://seanwilson.org
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From: "Scarberry, Mark" <Mark.Scarberry at pepperdine.edu>
To: conlawprof at lists.ucla.edu
Sent: Tue, September 28, 2010 11:51:58 PM
Subject: Newsweek, the Republican "Pledge, " and the Constitution outside the
With regard to the "Constitution outside the courts," a subject on which several
list members have written:
What does it say about the state of our media that Ben Adler, national editor of
Newsweek.com, would make the following assertion concerning the Republicans'
"Pledge to America" (http://pledge.gop.gov/):
"Other proposals follow the contract [1994 GOP 'Contract with America'] playbook
by calling for changes to the legislative process so as to rein in government.
For instance, Politico notes, 'In one standout procedural promise that could
prove difficult to keep, Republicans say they will let any lawmaker offer an
amendment to a bill that would cut spending.' This is just harmless theatrics.
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."
Here is a description of the author's position with Newsweek (from
"Since September 2009, he has been back in New York, editing Newsweek's online
political and national affairs content as National Editor of Newsweek.com, and
thanking God every time he has a slice of pizza."
Mr. Adler apparently is not a lawyer, but shouldn't a person in his position
understand that Congress at least has the right to consider whether legislation
is consistent with the Constitution? I suppose most of us think that Congress
has not only a right but a duty to do so. But for someone in Mr. Adler's
position to argue that Congress does not even have the right to do so is
I suppose if the required certification were something other than Congress's
certification, then Mr. Adler would have a point. What if the House adopted a
rule prohibiting consideration of any bill that had not been determined by the
ABA -- or the Federalist Society or American Constitution Society -- to be
consistent with the Constitution? Even then, though, it would not be an
encroachment on the judiciary but rather an improper delegation of Congress's
That's not to say whether the "Pledge to America" is good or bad; I hadn't even
skimmed it until a few minutes ago. Its intro includes a somewhat lame riff on
the Declaration of Independence. "Whenever the agenda of government becomes
destructive of these ends, it is the right of the people to institute a new
governing agenda and set a different course." Of course it is the right of the
people to vote out the elected members of our government and thus to attempt to
set a different course, whether or not the agenda of the current elected members
is destructive of the ends stated in the "Pledge."
But the "Pledge" does not seem to include the certification requirement
discussed by Mr. Adler. Here is the closest it seems to come:
"We will require each bill moving through Congress to include a clause citing
the specific constitutional authority upon which the bill is justified."
Again, I've only skimmed it, and there could be a more formal certification
requirement hiding somewhere in the "Pledge.".
A question for those interested in the Constitution outside the courts: Is a
self-imposed requirement that each bill state its constitutional basis helpful
in calling Congress to fidelity to the Constitution and in helping voters to
evaluate that fidelity?
And a more general con law question that I should know the answer to but don't:
If a statute states its constitutional basis (e.g., section 5 of the 14th Am.),
will a court reviewing it consider whether Congress had power to enact it under
another provision (e.g., the Commerce Clause) to enact the legislation?
Pepperdine Univ. School of Law
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