TAKING THE CONSTITUTION AWAY FROM THE COURTS: For some bizarre reason, Andrew Sullivan seems to think that Justices Rehnquist, Breyer et al. wrote the Constitution.

Check it out (the numbers are mine): “While I’m at it, I might as well address the issue many of you have emailed me about. That’s the notion that it somehow adds to public cynicism if the Congress passes a law that might well turn out to be unconstitutional in parts. I’m sorry, but I don’t quite buy this. The argument might work if the Congress knew as a metaphysical certainty that parts of the bill would be struck down by the Court. (problem #1) But metaphysical certainty doesn’t exist in politics. And in cases like these, it’s also legitimate for the Congress to say what it wants to happen, but passing it off to the other branch to decide on the constitutional issues. (#2) That sounds to me like a civics lesson, not an exercise in cynicism. The argument is particularly odd coming from some conservative quarters, who are constantly urging the passage of, say, abortion restrictions that might well not pass the current Court. I think they’re right to do so (#3); and CFR, even when parts of it may be constitutionally wobbly, should be held to the same standards.”

#1: Whether a bill is Constitutional has very little to do with whether it’s upheld or struck down by the Court. The Court has ruled in ways that warp the Constitution any number of times. Or are we to understand that Dred Scott was a good use of interpretive power?

#2: What if you think the bill is unconstitutional, but you don’t trust the Court to strike it down? What if you think the bill is Constitutional, but you think the Court will strike it down? What if you think part of Congress’s job is to avoid passing unconstitutional laws, regardless of whether the Court can be trusted to uphold the Constitution?

#3: Right, pro-life types keep trying to get this legislation passed, because they believe that the Court’s rulings in the past have incorrectly interpreted the Constitution. If they truly believed that Roe v. Wade was an accurate interpretation of the Constitution, they should not try to get unconstitutional laws passed.

I just don’t get this post of his at all.

On the other hand, his take on Frank Rich’s creepy article on David Brock’s new book is great: “What’s really, er, rich is that, under the guise of sounding horrified by muck-raking, Rich goes at it with gusto, citing, among other things, Brock’s lurid accounts of dens of closeted homosexual Washingtonians. I have to say I’ve lived here for more than a decade, know a lot of gay men and a lot of Republicans and have never come across anything even faintly like this. It sounds fun, though.”

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