Newsweek, the Republican "Pledge, " and the Constitution outside the courts

[Sean Wilson]

Questions.

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 
these premises? 

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.
Assistant Professor
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 
courts


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." 


(Copied from 
http://www.newsweek.com/blogs/the-gaggle/2010/09/22/gop-pledge-to-america-looks-unlikely-to-inspire.html.)
 
  
Here is a description of the author's position with Newsweek (from 
http://www.newsweek.com/authors/ben-adler.html):
 
"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 
surprising. 

 
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 
own duty. 

 
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?
 
Mark Scarberry
Pepperdine Univ. School of Law


      
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