Congress acknowledges the Constitution

This story in the Washington Post takes a dismissive and snarky tone, but I think this is a splendid idea.  Especially the part about requiring each bill to cite its constitutional authority.

When Republicans take over the House next week, they will do something that apparently has never been done before in the chamber’s 221-year history:

Two new rules will give Constitution a starring role in GOP-controlled House

They will read the Constitution aloud.

And then they will require that every new bill contain a statement by the lawmaker who wrote it citing the constitutional authority to enact the proposed legislation.

Call it the tea party-ization of Congress.

via Two new rules will give Constitution a starring role in GOP-controlled House.

To just associate this with the tea party in that condescending way is out of line.  Why would any lawmaker object to this?  They take an oath to defend the Constitution.  Why shouldn’t they defer to it?  Or do some journalists and politicians really believe in unlimited government?

At any rate, this could at least be an educational experience.  As Ezra Klein of the Washington Post told an interviewer, “The issue of the Constitution is that the text is confusing because it was written more than 100 years ago and what people believe it says differs from person to person and differs depending on what they want to get done.”  The thing dates way back to 1911 at least, so it surely can’t be binding on us postmodernists.

People often say that everything can be interpreted any number of ways, but I wonder about that. What part of the Tenth Amendment, the basis for that “radical” requirement to specify the constitutional authority for each bill, is so open-ended in its possible meanings?

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

About Gene Veith

Professor of Literature at Patrick Henry College, the Director of the Cranach Institute at Concordia Theological Seminary, a columnist for World Magazine and TableTalk, and the author of 18 books on different facets of Christianity & Culture.

  • Tom Hering

    “What part of the Tenth Amendment … is so open-ended in its possible meanings?”

    The “Constitution” part. The expectation, I’m guessing, is that everyone will follow a strict interpretation of the Constitution in the statements they attach to their bills. Good luck with that.

  • Tom Hering

    “What part of the Tenth Amendment … is so open-ended in its possible meanings?”

    The “Constitution” part. The expectation, I’m guessing, is that everyone will follow a strict interpretation of the Constitution in the statements they attach to their bills. Good luck with that.

  • http://facebook.com/mesamike Mike Westfall

    The Supreme Court has ruled many times that the Constitution doesn’t really mean what you and I think it clearly and simply says. Klein is right: the Constitution — dating way back to at least 1911 — is too confusing for us modern rubes.

    But good thing our founding fathers provided for a Magisterium of Supreme Pronouncements to tell us what it means. We’d be rudderless otherwise.

  • http://facebook.com/mesamike Mike Westfall

    The Supreme Court has ruled many times that the Constitution doesn’t really mean what you and I think it clearly and simply says. Klein is right: the Constitution — dating way back to at least 1911 — is too confusing for us modern rubes.

    But good thing our founding fathers provided for a Magisterium of Supreme Pronouncements to tell us what it means. We’d be rudderless otherwise.

  • http://www.newreformationpress.com Patrick Kyle

    Tell those Congressmen and journalists who say that the Constitution is a ‘Living Document’, that the business contracts they enter into are also ‘Living Documents’ subject to change, or too complicated (too much legalese) to be understood, and listen to the howls of protest and the spin as they deny the same rules of interpretation apply.

    Ezra Klein is either an idiot or is using his vocation to deceive gullible readers.

  • http://www.newreformationpress.com Patrick Kyle

    Tell those Congressmen and journalists who say that the Constitution is a ‘Living Document’, that the business contracts they enter into are also ‘Living Documents’ subject to change, or too complicated (too much legalese) to be understood, and listen to the howls of protest and the spin as they deny the same rules of interpretation apply.

    Ezra Klein is either an idiot or is using his vocation to deceive gullible readers.

  • http://www.bikebubba.blogspot.com Bike Bubba

    Like Mike says; the Constitution, written in plain English, is incomprehensible, but Supreme Court verdicts, written in legalese, are indisputable proof of the perspicuity of legal writing.

    Or something like that.

  • http://www.bikebubba.blogspot.com Bike Bubba

    Like Mike says; the Constitution, written in plain English, is incomprehensible, but Supreme Court verdicts, written in legalese, are indisputable proof of the perspicuity of legal writing.

    Or something like that.

  • DonS

    This is an awesome requirement. The amazing thing to me, when the Obamacare legislation was passed last spring (on a Sunday after Congress ran roughshod over every rule in the book, as well as every promise Obama had made in his presidential campaign concerning openness and bipartisanship), was that Nancy Pelosi responded to a question about constitutional authority with “Are you serious?”. In her mind, obviously, there is no constitutional limit on congressional power.

    This requirement will not deter the introduction of legislation. Liberal legislators will find some constitutional justification for their meddling. But, three things will be accomplished. One, they will have to actually dust off their copies of the constitution and read them. That might, occasionally, be enlightening. Two, their constitutional philosophies will be exposed for all to see. And, three, it will engender a discussion concerning constitutionality for those bills that skirt the edges of constitutional authority. That cannot help but be a good thing.

  • DonS

    This is an awesome requirement. The amazing thing to me, when the Obamacare legislation was passed last spring (on a Sunday after Congress ran roughshod over every rule in the book, as well as every promise Obama had made in his presidential campaign concerning openness and bipartisanship), was that Nancy Pelosi responded to a question about constitutional authority with “Are you serious?”. In her mind, obviously, there is no constitutional limit on congressional power.

    This requirement will not deter the introduction of legislation. Liberal legislators will find some constitutional justification for their meddling. But, three things will be accomplished. One, they will have to actually dust off their copies of the constitution and read them. That might, occasionally, be enlightening. Two, their constitutional philosophies will be exposed for all to see. And, three, it will engender a discussion concerning constitutionality for those bills that skirt the edges of constitutional authority. That cannot help but be a good thing.

  • Booklover

    The Constitution will be read aloud in the chamber??!!!
    Before we know it, the Bible will be read aloud in the churches!!!

    :-/

  • Booklover

    The Constitution will be read aloud in the chamber??!!!
    Before we know it, the Bible will be read aloud in the churches!!!

    :-/

  • Tom Hering

    “… their constitutional philosophies will be exposed for all to see.” – DonS @ 5.

    Exactly. The new rule is a conservative “gotcha” that will accomplish precisely zip.

  • Tom Hering

    “… their constitutional philosophies will be exposed for all to see.” – DonS @ 5.

    Exactly. The new rule is a conservative “gotcha” that will accomplish precisely zip.

  • DonS

    Tom @ 7:

    So it’s a “gotcha” to actually hold legislators accountable to explain the constitutional basis for their pet programs? I fail to see how exposing Congressional action to constitutional scrutiny and doing so in view of the public accomplishes “zip”. Unless your definition of “accomplishment” requires ceding unlimited power to Congress.

  • DonS

    Tom @ 7:

    So it’s a “gotcha” to actually hold legislators accountable to explain the constitutional basis for their pet programs? I fail to see how exposing Congressional action to constitutional scrutiny and doing so in view of the public accomplishes “zip”. Unless your definition of “accomplishment” requires ceding unlimited power to Congress.

  • http://www.toddstadler.com/ tODD

    “To just associate this with the tea party in that condescending way is out of line.” Is it? Is it even condescending?

    Let’s see, to the degree that the “tea party” could even be said to have had any concrete planks, I’m pretty certain that these actions were part of them. And these new methods are only being implemented now that the Republicans are retaking control of the House, which nearly everyone agrees was aided by “tea party” momentum. Republicans never seemed to care about doing this until now. So … why is it out of line to suggest that this is their influence? Conservatives can get so touchy!

    As to Klein’s comment, after complaining about “condescension”, is it really fair to imply that he said that the Constitution “surely can’t be binding on us postmodernists”? Is that what he said?

    Or did he make the fairly valid, easily proven point that it’s not simply a question of reading the Constitution, it’s agreeing on what it means?

    You’d think that Christians with their own confessions might understand this idea. That it’s not merely a matter of saying that you believe in a text — because many people can read that text and think that it agrees with their disparate, mutually exclusive ideas — but what you think that text means. Are the Lutheran Confessions “postmodernist” as well, for daring to point out that “what people believe [the Bible] says differs from person to person and differs depending on what they want to get done”?

    As for the Tenth Amendment, Tom (@1) got it right. The question is: what does the Constitution allow? If you can justify your law from something other than the Tenth Amendment (or convince others that you have), then that amendment is pretty worthless.

    This really will be an exercise that makes some people feel good but does little. Get ready for a slew of bills tagged with “Commerce Clause” or “Necessary and Proper Clause”, or whatever sections have been interpreted expansively in recent decades. And then what have you accomplished?

    The problem lies in the interpretation of those clauses, not in finding one to justify your particular law. Ah, but how do you know if your interpretation of that clause is correct? There are two approaches. One, taken by many “conservatives”, is to claim that your reading is the correct one and everyone else who disagrees is wrong, several decades or centuries of judicial and legislative history notwithstanding. The other is to say that it is up to our courts to determine the correct interpretation.

    Which means that, at the end of these changes, all we’ll have is a bunch of “conservatives” who disagree with the court’s rulings. Oh, and what a change that will have made!

  • http://www.toddstadler.com/ tODD

    “To just associate this with the tea party in that condescending way is out of line.” Is it? Is it even condescending?

    Let’s see, to the degree that the “tea party” could even be said to have had any concrete planks, I’m pretty certain that these actions were part of them. And these new methods are only being implemented now that the Republicans are retaking control of the House, which nearly everyone agrees was aided by “tea party” momentum. Republicans never seemed to care about doing this until now. So … why is it out of line to suggest that this is their influence? Conservatives can get so touchy!

    As to Klein’s comment, after complaining about “condescension”, is it really fair to imply that he said that the Constitution “surely can’t be binding on us postmodernists”? Is that what he said?

    Or did he make the fairly valid, easily proven point that it’s not simply a question of reading the Constitution, it’s agreeing on what it means?

    You’d think that Christians with their own confessions might understand this idea. That it’s not merely a matter of saying that you believe in a text — because many people can read that text and think that it agrees with their disparate, mutually exclusive ideas — but what you think that text means. Are the Lutheran Confessions “postmodernist” as well, for daring to point out that “what people believe [the Bible] says differs from person to person and differs depending on what they want to get done”?

    As for the Tenth Amendment, Tom (@1) got it right. The question is: what does the Constitution allow? If you can justify your law from something other than the Tenth Amendment (or convince others that you have), then that amendment is pretty worthless.

    This really will be an exercise that makes some people feel good but does little. Get ready for a slew of bills tagged with “Commerce Clause” or “Necessary and Proper Clause”, or whatever sections have been interpreted expansively in recent decades. And then what have you accomplished?

    The problem lies in the interpretation of those clauses, not in finding one to justify your particular law. Ah, but how do you know if your interpretation of that clause is correct? There are two approaches. One, taken by many “conservatives”, is to claim that your reading is the correct one and everyone else who disagrees is wrong, several decades or centuries of judicial and legislative history notwithstanding. The other is to say that it is up to our courts to determine the correct interpretation.

    Which means that, at the end of these changes, all we’ll have is a bunch of “conservatives” who disagree with the court’s rulings. Oh, and what a change that will have made!

  • http://facebook.com/mesamike Mike Westfall

    As for Congress having to give a constitutional basis for whatever they want to pass, I don’t see that as being a very hard thing to do. It’s either the “commerce clause” or the “general welfare clause.”

  • http://facebook.com/mesamike Mike Westfall

    As for Congress having to give a constitutional basis for whatever they want to pass, I don’t see that as being a very hard thing to do. It’s either the “commerce clause” or the “general welfare clause.”

  • DonS

    Regardless of one’s interpretation of particular constitutional clauses, I guess I still don’t see why it’s such a bad or onerous thing to make a legislator state the constitutional basis for his/her bill. As Mike says, it shouldn’t be a very hard or time consuming thing to do, should it? In the overall scheme of things Congress wastes its time on, or, worse yet, forces the citizens to waste their time and money on, in the form of regulatory compliance costs, this is nothing. But it seems to be raising a lot of hackles on the part of those on the left.

  • DonS

    Regardless of one’s interpretation of particular constitutional clauses, I guess I still don’t see why it’s such a bad or onerous thing to make a legislator state the constitutional basis for his/her bill. As Mike says, it shouldn’t be a very hard or time consuming thing to do, should it? In the overall scheme of things Congress wastes its time on, or, worse yet, forces the citizens to waste their time and money on, in the form of regulatory compliance costs, this is nothing. But it seems to be raising a lot of hackles on the part of those on the left.

  • http://www.toddstadler.com/ tODD

    I don’t know whom “on the left” you had in mind, Don (@11), but for me, it’s less an issue of “raising hackles” and more one of rolling eyes.

    This is just a surface-level alteration that will fail to bring about any significant change. In short, it’s a harbinger of the Republican House to come.

  • http://www.toddstadler.com/ tODD

    I don’t know whom “on the left” you had in mind, Don (@11), but for me, it’s less an issue of “raising hackles” and more one of rolling eyes.

    This is just a surface-level alteration that will fail to bring about any significant change. In short, it’s a harbinger of the Republican House to come.

  • DonS

    tODD @ 12: I agree with you that this one action, by itself, probably will not be earth-shattering. Legislators are addicted to power and will not give it up easily. But NOT doing it certainly won’t change anything. Moreover, the only way government will ever be reined into its proper constitutional boundaries will be for the people, including legislators, to understand what the constitution says, and to engage the issue of limited federal government. We need to put behind us the era in which the Speaker of the House addresses a legitimate issue of limited government with the dismissive question “Are you serious?”.

  • DonS

    tODD @ 12: I agree with you that this one action, by itself, probably will not be earth-shattering. Legislators are addicted to power and will not give it up easily. But NOT doing it certainly won’t change anything. Moreover, the only way government will ever be reined into its proper constitutional boundaries will be for the people, including legislators, to understand what the constitution says, and to engage the issue of limited federal government. We need to put behind us the era in which the Speaker of the House addresses a legitimate issue of limited government with the dismissive question “Are you serious?”.

  • http://www.toddstadler.com/ tODD

    Don (@13), a sampler of other ideas we could try that would probably not be earth-shattering, but for which the failure to have them enacted certainly wouldn’t change anything:

    * Requiring every legislator to wear a Constitution lapel pin
    * Forcing every legislator to change their middle name to “Constitutional”
    * Mandating legislators to begin every comment on the floor with a rap that begins “Well my name’s _____ and I’m here to say / That I love the Constitution in a major way”

    I assume you are strongly in favor of these ideas, as well.

    As to this point of yours:

    We need to put behind us the era in which the Speaker of the House addresses a legitimate issue of limited government with the dismissive question “Are you serious?”.

    Oh, the mileage one can get out of a tightly edited, contextless audio clip! Go ahead, Don, tell me what Ms. Pelosi said after asking “Are you serious?”

    And, just to show how impotent this whole “constitutional authority citation” idea is, the easy answer to the question that prompted Pelosi’s response, “Where specifically does the Constitution grant Congress the authority to enact an individual health insurance mandate?” is: the Commerce Clause. Tada!

    Not that I agree with that, but that’s what every liberal will tell you, and doubtless what Pelosi thought was so obvious.

    And now you see exactly how effective this proposed rule change will be in stopping the federal government.

  • http://www.toddstadler.com/ tODD

    Don (@13), a sampler of other ideas we could try that would probably not be earth-shattering, but for which the failure to have them enacted certainly wouldn’t change anything:

    * Requiring every legislator to wear a Constitution lapel pin
    * Forcing every legislator to change their middle name to “Constitutional”
    * Mandating legislators to begin every comment on the floor with a rap that begins “Well my name’s _____ and I’m here to say / That I love the Constitution in a major way”

    I assume you are strongly in favor of these ideas, as well.

    As to this point of yours:

    We need to put behind us the era in which the Speaker of the House addresses a legitimate issue of limited government with the dismissive question “Are you serious?”.

    Oh, the mileage one can get out of a tightly edited, contextless audio clip! Go ahead, Don, tell me what Ms. Pelosi said after asking “Are you serious?”

    And, just to show how impotent this whole “constitutional authority citation” idea is, the easy answer to the question that prompted Pelosi’s response, “Where specifically does the Constitution grant Congress the authority to enact an individual health insurance mandate?” is: the Commerce Clause. Tada!

    Not that I agree with that, but that’s what every liberal will tell you, and doubtless what Pelosi thought was so obvious.

    And now you see exactly how effective this proposed rule change will be in stopping the federal government.

  • DonS

    tODD @ 14: No thanks, I prefer just sticking to having the legislators actually state where in the Constitution they derive authority for their bills. These other ideas of your’s are cute enough, but nothing Congress does right now is funny, since they’re busy sticking my kids as well as your’s with six figure debt loads.

    And, just to show how impotent this whole “constitutional authority citation” idea is, the easy answer to the question that prompted Pelosi’s response, “Where specifically does the Constitution grant Congress the authority to enact an individual health insurance mandate?” is: the Commerce Clause. Tada!

    Yeah, but that’s the point. At least one federal judge so far has ruled that answer to be wrong. And the whole point of this exercise is to make legislators, as well as the public, think about limits and understand that they are real.

  • DonS

    tODD @ 14: No thanks, I prefer just sticking to having the legislators actually state where in the Constitution they derive authority for their bills. These other ideas of your’s are cute enough, but nothing Congress does right now is funny, since they’re busy sticking my kids as well as your’s with six figure debt loads.

    And, just to show how impotent this whole “constitutional authority citation” idea is, the easy answer to the question that prompted Pelosi’s response, “Where specifically does the Constitution grant Congress the authority to enact an individual health insurance mandate?” is: the Commerce Clause. Tada!

    Yeah, but that’s the point. At least one federal judge so far has ruled that answer to be wrong. And the whole point of this exercise is to make legislators, as well as the public, think about limits and understand that they are real.

  • http://www.toddstadler.com/ tODD

    Don (@15), I believe you prove my point when you say, “At least one federal judge so far has ruled [the preferred constitutional justification for the individual insurance mandate] to be wrong.” It’s not about what you and I think the Constitution says, it’s what the various judges involved think. That is the limit on congressional power, not forcing them to come up with some justification that most of them seem to have done already.

    I mean, think about it, a law is unconstitutional or constitutional if the Supreme Court rules it’s so, no matter what article and clause some congressman tags a bill with — or even if he completely fails to do so.

    But it seems this rule change is based on the idea that our legislators are nearly completely ignorant of the Constitution. I really don’t think that’s the issue. The issue (and I will sound like a broken record here) is in how they interpret the Constitution, not in their basic familiarity with it or not.

  • http://www.toddstadler.com/ tODD

    Don (@15), I believe you prove my point when you say, “At least one federal judge so far has ruled [the preferred constitutional justification for the individual insurance mandate] to be wrong.” It’s not about what you and I think the Constitution says, it’s what the various judges involved think. That is the limit on congressional power, not forcing them to come up with some justification that most of them seem to have done already.

    I mean, think about it, a law is unconstitutional or constitutional if the Supreme Court rules it’s so, no matter what article and clause some congressman tags a bill with — or even if he completely fails to do so.

    But it seems this rule change is based on the idea that our legislators are nearly completely ignorant of the Constitution. I really don’t think that’s the issue. The issue (and I will sound like a broken record here) is in how they interpret the Constitution, not in their basic familiarity with it or not.

  • DonS

    tODD, unfortunately, your view is a prevalent one today. We cede everything to the courts, no longer willing to do our own thinking on these things. Your view, apparently, is to simply assume everything is constitutional until someone takes the time and money necessary to challenge it in court and get a ruling sometime down the road. And then we just put unmitigated faith in the person in the black robe, who was, mostly, just a political appointee, after all. In the meantime, should the courts later rule the statute or regulation to have been unconstitutional, that means the government has been trampling on citizens’ rights during the entire interim from enactment of the law until the court blocks it. What a shame. Sometimes, justice delayed is justice denied, you know.

    Until Marbury v. Madison was decided in 1802, it wasn’t even clear that the courts had the right to decide constitutional issues vis-a-vis other co-equal branches. The Court kind of took that power upon itself, and not without controversy. Even so, however, there is nothing that says that the judiciary is the ONLY governmental branch capable of determining constitutional matters. Both the legislature and the administration not only have the right to determine that they are acting constitutionally, they have the obligation to do so. The best way to protect the people’s constitutional rights is prospectively, by enacting laws after due deliberation, rather than after the fact, once a controversy has been created which permits court jurisdiction and after people have been affected by the possibly unconstitutional law. Finally, Congress is recognizing its obligation to act lawfully. It’s about time.

    As an aside, I can see one very distinct advantage to having the constitutional basis (bases) for each law spelled out. In the case of Obamacare, the administration claimed that its authority came under the Commerce Clause in arguments raised prior to enactment. In fact, it specifically denied that the individual mandate was a tax. But now, in court, knowing its commerce clause rationale is dubious at best, it is claiming that it was enacted under Congress’ broader taxing power. Ironic, huh? Putting the basis in writing, right in the law itself, or at least in its legislative history, would hopefully stymie those kinds of shenanigans.

  • DonS

    tODD, unfortunately, your view is a prevalent one today. We cede everything to the courts, no longer willing to do our own thinking on these things. Your view, apparently, is to simply assume everything is constitutional until someone takes the time and money necessary to challenge it in court and get a ruling sometime down the road. And then we just put unmitigated faith in the person in the black robe, who was, mostly, just a political appointee, after all. In the meantime, should the courts later rule the statute or regulation to have been unconstitutional, that means the government has been trampling on citizens’ rights during the entire interim from enactment of the law until the court blocks it. What a shame. Sometimes, justice delayed is justice denied, you know.

    Until Marbury v. Madison was decided in 1802, it wasn’t even clear that the courts had the right to decide constitutional issues vis-a-vis other co-equal branches. The Court kind of took that power upon itself, and not without controversy. Even so, however, there is nothing that says that the judiciary is the ONLY governmental branch capable of determining constitutional matters. Both the legislature and the administration not only have the right to determine that they are acting constitutionally, they have the obligation to do so. The best way to protect the people’s constitutional rights is prospectively, by enacting laws after due deliberation, rather than after the fact, once a controversy has been created which permits court jurisdiction and after people have been affected by the possibly unconstitutional law. Finally, Congress is recognizing its obligation to act lawfully. It’s about time.

    As an aside, I can see one very distinct advantage to having the constitutional basis (bases) for each law spelled out. In the case of Obamacare, the administration claimed that its authority came under the Commerce Clause in arguments raised prior to enactment. In fact, it specifically denied that the individual mandate was a tax. But now, in court, knowing its commerce clause rationale is dubious at best, it is claiming that it was enacted under Congress’ broader taxing power. Ironic, huh? Putting the basis in writing, right in the law itself, or at least in its legislative history, would hopefully stymie those kinds of shenanigans.

  • http://www.toddstadler.com/ tODD

    Don (@17), I believe you’re confusing my description with prescription. “We cede everything to the courts, no longer willing to do our own thinking on these things.” Look, no matter how much thinking I do on my own, it’s not going to change things, as such. Yes, of course, by all means, let us all read and study the Constitution and vote and petition accordingly. Let me get that out of the way. But that voting and petitioning is the only method by which my own opinions about the Constitution will have any actual effect.

    And that effect will be brought about, eventually, by the ruling of a judge (hopefully one that I agree with, nominated and confirmed by politicians I agree with that I voted for). But not merely because I happened to think the Constitution means thus-and-so.

    “We just put unmitigated faith in the person in the black robe, who was, mostly, just a political appointee, after all.” Are you suggesting that I should, instead, put “unmitigated faith” in the opinions of one DonS? What makes your opinions more qualified than those of a Supreme Court justice? Are they truly merely “just political appointees, after all”? Or are you selling their qualifications remarkably short, even as you implicitly play up your own? (After all, you are trying to convince me that you know better than them, or many of them, at least).

    In the meantime, should the courts later rule the statute or regulation to have been unconstitutional, that means the government has been trampling on citizens’ rights during the entire interim from enactment of the law until the court blocks it. What a shame. Sometimes, justice delayed is justice denied, you know.

    What a shame, indeed, but that’s how it is. I’d rather have judges decide too late that someone has been denied their rights rather than their never getting a chance at justice.

    There is nothing that says that the judiciary is the ONLY governmental branch capable of determining constitutional matters. Both the legislature and the administration not only have the right to determine that they are acting constitutionally, they have the obligation to do so.

    Yes, of course, the other branches should act constitutionally, duh. But what if they don’t? Who will check them? The judiciary! Though you appear to have a problem with that. I don’t know why.

    I mean, your prescription here seems to be that Congress should just do the right thing. No offense, but isn’t that more than a little bit Pollyanna — and as such, somewhat anathema to the principles by which the Founding Fathers set up this government? You can’t just hope that everyone will do the right thing, you have to expect that they will desire to do the wrong thing, but give others the power to check them. That is why judicial review is a good thing. And you agree, at least in cases like the one where one federal judge (out of several) found the insurance mandate unconstitutional.

    So whence your apparent general beef with judicial review?

  • http://www.toddstadler.com/ tODD

    Don (@17), I believe you’re confusing my description with prescription. “We cede everything to the courts, no longer willing to do our own thinking on these things.” Look, no matter how much thinking I do on my own, it’s not going to change things, as such. Yes, of course, by all means, let us all read and study the Constitution and vote and petition accordingly. Let me get that out of the way. But that voting and petitioning is the only method by which my own opinions about the Constitution will have any actual effect.

    And that effect will be brought about, eventually, by the ruling of a judge (hopefully one that I agree with, nominated and confirmed by politicians I agree with that I voted for). But not merely because I happened to think the Constitution means thus-and-so.

    “We just put unmitigated faith in the person in the black robe, who was, mostly, just a political appointee, after all.” Are you suggesting that I should, instead, put “unmitigated faith” in the opinions of one DonS? What makes your opinions more qualified than those of a Supreme Court justice? Are they truly merely “just political appointees, after all”? Or are you selling their qualifications remarkably short, even as you implicitly play up your own? (After all, you are trying to convince me that you know better than them, or many of them, at least).

    In the meantime, should the courts later rule the statute or regulation to have been unconstitutional, that means the government has been trampling on citizens’ rights during the entire interim from enactment of the law until the court blocks it. What a shame. Sometimes, justice delayed is justice denied, you know.

    What a shame, indeed, but that’s how it is. I’d rather have judges decide too late that someone has been denied their rights rather than their never getting a chance at justice.

    There is nothing that says that the judiciary is the ONLY governmental branch capable of determining constitutional matters. Both the legislature and the administration not only have the right to determine that they are acting constitutionally, they have the obligation to do so.

    Yes, of course, the other branches should act constitutionally, duh. But what if they don’t? Who will check them? The judiciary! Though you appear to have a problem with that. I don’t know why.

    I mean, your prescription here seems to be that Congress should just do the right thing. No offense, but isn’t that more than a little bit Pollyanna — and as such, somewhat anathema to the principles by which the Founding Fathers set up this government? You can’t just hope that everyone will do the right thing, you have to expect that they will desire to do the wrong thing, but give others the power to check them. That is why judicial review is a good thing. And you agree, at least in cases like the one where one federal judge (out of several) found the insurance mandate unconstitutional.

    So whence your apparent general beef with judicial review?

  • DonS

    tODD @ 18: Wow, there’s a lot in your post to digest and respond to. At some level, there appears to be a disconnect in our communication, so I’ll try to unpack things point-by-point. Let me start with this, though, addressing your last question. I have no problem with judicial review. There has to be an ultimate authority in matters of constitutional interpretation, or government could truly fly apart. So, I think Marbury v. Madison was correctly decided. Caveats — there are certain matters which are not justiciable, and I think the concept of judical review is often wrongly applied.

    But that voting and petitioning is the only method by which my own opinions about the Constitution will have any actual effect. And that effect will be brought about, eventually, by the ruling of a judge (hopefully one that I agree with, nominated and confirmed by politicians I agree with that I voted for). But not merely because I happened to think the Constitution means thus-and-so.

    I disagree that voting and petitioning is the only method by which your opinions concerning the Constitution will have any actual effect. Public opinion drives what Congress does, and ultimately how the courts respond to it. Oftentimes, opinions on constitutional matters even expressly admit that they are guided by public opinion. This is especially true in 8th Amendment cases concerning appropriate modes of capital punishment. By having conversations with our fellow citizens, such as this one and others on this blog, we are helping in some small way to form or at least inform a national consensus as to what is constitutional and what isn’t. At the very least, we are demarcating the areas of controversy and developing the arguments that may ultimately be found in court filings.

    I also disagree with the attitude that the “effect will be brought about, eventually, by the ruling of a judge …”. It doesn’t have to be. If our legislators and regulators have a strong understanding of constitutional law, and obtain appropriate legal counsel before acting to legislate or regulate, a controversy will be avoided, and there will be no need for adjudication by the courts. Having congressional representatives take the straightforward step of identifying the constitutional basis for their bill is a good way to ensure that appropriate consideration is given to these issues before someone has to go to the time and expense of going to court because their client has been injured by an unconstitutional law or regulation.

    Are you suggesting that I should, instead, put “unmitigated faith” in the opinions of one DonS? What makes your opinions more qualified than those of a Supreme Court justice? Are they truly merely “just political appointees, after all”? Or are you selling their qualifications remarkably short, even as you implicitly play up your own?

    Of course not. I didn’t even offer an opinion in this post, except that I think this new initiative is a good one. What I do think is that judges are just Americans, no better than us, and we have as much right to our opinions as they do to theirs. We should all think about these issues, and decide them for ourselves. Citizens should be empowered, and not merely accept the current attitude of politicians that they can ram anything through they want to until a court tells them to stop.

    What a shame, indeed, but that’s how it is. I’d rather have judges decide too late that someone has been denied their rights rather than their never getting a chance at justice.

    I agree with you. But, even better would be if legislators acted circumspectly in the first place, giving consideration to constitional issues before the citizen is hurt and has to spend their savings and years of their lives to try to secure their rights, after the fact, in court.

    Yes, of course, the other branches should act constitutionally, duh. But what if they don’t? Who will check them? The judiciary! Though you appear to have a problem with that. I don’t know why.

    I don’t have a problem with that, as I stated above. If need be, sometimes the judiciary needs to be asked to step in. But having Congress have to explicitly justify their rationale under the Constitition for the bills they propose is at least a small step toward having them hopefully do the right thing.

    “And you agree, at least in cases like the one where one federal judge (out of several) found the insurance mandate unconstitutional.” — It’s currently one out of three, and I believe soon to be two out of four, when the Florida judge rules.

    I’m still struggling with why you think it is such a big inconvenience for a legislator to have to explain the constitutional basis for his/her bill before having it considered.

  • DonS

    tODD @ 18: Wow, there’s a lot in your post to digest and respond to. At some level, there appears to be a disconnect in our communication, so I’ll try to unpack things point-by-point. Let me start with this, though, addressing your last question. I have no problem with judicial review. There has to be an ultimate authority in matters of constitutional interpretation, or government could truly fly apart. So, I think Marbury v. Madison was correctly decided. Caveats — there are certain matters which are not justiciable, and I think the concept of judical review is often wrongly applied.

    But that voting and petitioning is the only method by which my own opinions about the Constitution will have any actual effect. And that effect will be brought about, eventually, by the ruling of a judge (hopefully one that I agree with, nominated and confirmed by politicians I agree with that I voted for). But not merely because I happened to think the Constitution means thus-and-so.

    I disagree that voting and petitioning is the only method by which your opinions concerning the Constitution will have any actual effect. Public opinion drives what Congress does, and ultimately how the courts respond to it. Oftentimes, opinions on constitutional matters even expressly admit that they are guided by public opinion. This is especially true in 8th Amendment cases concerning appropriate modes of capital punishment. By having conversations with our fellow citizens, such as this one and others on this blog, we are helping in some small way to form or at least inform a national consensus as to what is constitutional and what isn’t. At the very least, we are demarcating the areas of controversy and developing the arguments that may ultimately be found in court filings.

    I also disagree with the attitude that the “effect will be brought about, eventually, by the ruling of a judge …”. It doesn’t have to be. If our legislators and regulators have a strong understanding of constitutional law, and obtain appropriate legal counsel before acting to legislate or regulate, a controversy will be avoided, and there will be no need for adjudication by the courts. Having congressional representatives take the straightforward step of identifying the constitutional basis for their bill is a good way to ensure that appropriate consideration is given to these issues before someone has to go to the time and expense of going to court because their client has been injured by an unconstitutional law or regulation.

    Are you suggesting that I should, instead, put “unmitigated faith” in the opinions of one DonS? What makes your opinions more qualified than those of a Supreme Court justice? Are they truly merely “just political appointees, after all”? Or are you selling their qualifications remarkably short, even as you implicitly play up your own?

    Of course not. I didn’t even offer an opinion in this post, except that I think this new initiative is a good one. What I do think is that judges are just Americans, no better than us, and we have as much right to our opinions as they do to theirs. We should all think about these issues, and decide them for ourselves. Citizens should be empowered, and not merely accept the current attitude of politicians that they can ram anything through they want to until a court tells them to stop.

    What a shame, indeed, but that’s how it is. I’d rather have judges decide too late that someone has been denied their rights rather than their never getting a chance at justice.

    I agree with you. But, even better would be if legislators acted circumspectly in the first place, giving consideration to constitional issues before the citizen is hurt and has to spend their savings and years of their lives to try to secure their rights, after the fact, in court.

    Yes, of course, the other branches should act constitutionally, duh. But what if they don’t? Who will check them? The judiciary! Though you appear to have a problem with that. I don’t know why.

    I don’t have a problem with that, as I stated above. If need be, sometimes the judiciary needs to be asked to step in. But having Congress have to explicitly justify their rationale under the Constitition for the bills they propose is at least a small step toward having them hopefully do the right thing.

    “And you agree, at least in cases like the one where one federal judge (out of several) found the insurance mandate unconstitutional.” — It’s currently one out of three, and I believe soon to be two out of four, when the Florida judge rules.

    I’m still struggling with why you think it is such a big inconvenience for a legislator to have to explain the constitutional basis for his/her bill before having it considered.

  • http://www.toddstadler.com/ tODD

    Don (@19), now it’s my turn.

    I have no problem with judicial review. There has to be an ultimate authority in matters of constitutional interpretation.

    Now, please note how this strikes a different tone, if not (you seem to say) a different stance from your statements (@17) that “we [unfortunately] cede everything to the courts” and “we just put unmitigated faith in the person in the black robe”. So … is it okay to trust in justices as the “ultimate authority” in constitutional matters, or not?

    As to your caveat that

    there are certain matters which are not justiciable, and I think the concept of judical review is often wrongly applied

    by what rule should this be decided? What is not “justiciable”, and by what authority do you claim that the Supreme Court lacks the authority?

    Public opinion drives what Congress does, and ultimately how the courts respond to it.

    Um, keep in mind that we are discussing the question of interpreting the Constitution and who should be the arbiter for such. Are you suggesting that ever-changing public opinion should inform “how the courts respond” to constitutional interpretation questions? Because that doesn’t seem very conservative of you.

    By having conversations with our fellow citizens, such as this one and others on this blog, we are helping in some small way to form or at least inform a national consensus as to what is constitutional and what isn’t.

    So … it’s kind of a “living document”, then, you might say? Understood properly only through shifting modern opinions, and not according to original intent? That really seems like what you’re saying. I’m pretty certain that it isn’t. But I can’t see what I’m pretty certain you believe in what you’re actually writing.

    If our legislators and regulators have a strong understanding of constitutional law, and obtain appropriate legal counsel before acting to legislate or regulate, a controversy will be avoided

    No. Controversy will only be avoided if everyone in the nation agrees on what the Constitution means. They don’t. Take the current example. On what basis would you make the claim that our legislators have not taken their “strong understanding of constitutional law” and, having “obtained appropriate legal counsel”, crafted the health-care bill we are discussing? Again, they believe they have constitutional backing on this. And yet there is controversy. You appear to be promoting the idea that it is impossible for anyone to disagree on the meaning and extent of the Constitution’s wording, if they would only read it. I believe this to be quite obviously incorrect.

    “I didn’t even offer an opinion in this post, except that I think this new initiative is a good one.” And that Marbury v. Madison was correctly decided. And that “the concept of judical review is often wrongly applied”. But yes, I was also thinking of other opinions you have offered elsewhere in which you made it clear that you were right and the Supreme Court was wrong. Guess which one of those two holds legal sway.

    “Judges are just Americans, no better than us, and we have as much right to our opinions as they do to theirs.” Who said judges are “better” than us? Anyhow, you appear to have a problem with vocation. Try this rewording on for size: “Police officers are just Americans, no better than us, and we have as much right to our opinions as they do to theirs.” Now try using that sentence the next time you get pulled over. Do you think it’ll get you anywhere? Are you advocating that there are no experts, or that experts shouldn’t carry any more sway than non-experts? Would I be as good at your job as you are? Do you think you’re better than me, Don?

    Citizens should be empowered, and not merely accept the current attitude of politicians that they can ram anything through they want to until a court tells them to stop.

    A valiant rallying cry, but how does it actually play out in real life? Let’s say a group of legislators rams through a law — a health-care law, say — that you find offensive. You’re an empowered sort of guy, of course, so what do you do, Don? Surely you don’t just wait for someone somewhere to bring a lawsuit, and then just wait for some judge somewhere to rule on that lawsuit? You’re an empowered man of action — tell me, what are you doing right now about it?

    “Even better would be if legislators acted circumspectly in the first place”. Indeed. Even more better would be if they could fly, so that our nation would be spared the pollution from their traveling everywhere via car and airplane. And their laser vision would preclude the need for a standing military.

    But having Congress have to explicitly justify their rationale under the Constitition for the bills they propose is at least a small step toward having them hopefully do the right thing.

    And we arrive back at your original point. You think it’s a step forward. I think it’s a pointless, if also harmless, effort that makes some people feel good without accomplishing anything. You’re imagining that this rule will somehow bring about a crop of politicians completely unlike the ones we’ve had before, without acknowledging that constitutionality has always been a requirement of every law ever, and yet here we are now. All along, the problem hasn’t been a lack constitutional justifications, it’s been that the justifications have occasionally been severaly strained.

    “I’m still struggling with why you think it is such a big inconvenience.” Again, that isn’t my point. My point is that this is pointless. Might as well make them do that rap intro I mentioned earlier (@14). It’s just as good an idea.

  • http://www.toddstadler.com/ tODD

    Don (@19), now it’s my turn.

    I have no problem with judicial review. There has to be an ultimate authority in matters of constitutional interpretation.

    Now, please note how this strikes a different tone, if not (you seem to say) a different stance from your statements (@17) that “we [unfortunately] cede everything to the courts” and “we just put unmitigated faith in the person in the black robe”. So … is it okay to trust in justices as the “ultimate authority” in constitutional matters, or not?

    As to your caveat that

    there are certain matters which are not justiciable, and I think the concept of judical review is often wrongly applied

    by what rule should this be decided? What is not “justiciable”, and by what authority do you claim that the Supreme Court lacks the authority?

    Public opinion drives what Congress does, and ultimately how the courts respond to it.

    Um, keep in mind that we are discussing the question of interpreting the Constitution and who should be the arbiter for such. Are you suggesting that ever-changing public opinion should inform “how the courts respond” to constitutional interpretation questions? Because that doesn’t seem very conservative of you.

    By having conversations with our fellow citizens, such as this one and others on this blog, we are helping in some small way to form or at least inform a national consensus as to what is constitutional and what isn’t.

    So … it’s kind of a “living document”, then, you might say? Understood properly only through shifting modern opinions, and not according to original intent? That really seems like what you’re saying. I’m pretty certain that it isn’t. But I can’t see what I’m pretty certain you believe in what you’re actually writing.

    If our legislators and regulators have a strong understanding of constitutional law, and obtain appropriate legal counsel before acting to legislate or regulate, a controversy will be avoided

    No. Controversy will only be avoided if everyone in the nation agrees on what the Constitution means. They don’t. Take the current example. On what basis would you make the claim that our legislators have not taken their “strong understanding of constitutional law” and, having “obtained appropriate legal counsel”, crafted the health-care bill we are discussing? Again, they believe they have constitutional backing on this. And yet there is controversy. You appear to be promoting the idea that it is impossible for anyone to disagree on the meaning and extent of the Constitution’s wording, if they would only read it. I believe this to be quite obviously incorrect.

    “I didn’t even offer an opinion in this post, except that I think this new initiative is a good one.” And that Marbury v. Madison was correctly decided. And that “the concept of judical review is often wrongly applied”. But yes, I was also thinking of other opinions you have offered elsewhere in which you made it clear that you were right and the Supreme Court was wrong. Guess which one of those two holds legal sway.

    “Judges are just Americans, no better than us, and we have as much right to our opinions as they do to theirs.” Who said judges are “better” than us? Anyhow, you appear to have a problem with vocation. Try this rewording on for size: “Police officers are just Americans, no better than us, and we have as much right to our opinions as they do to theirs.” Now try using that sentence the next time you get pulled over. Do you think it’ll get you anywhere? Are you advocating that there are no experts, or that experts shouldn’t carry any more sway than non-experts? Would I be as good at your job as you are? Do you think you’re better than me, Don?

    Citizens should be empowered, and not merely accept the current attitude of politicians that they can ram anything through they want to until a court tells them to stop.

    A valiant rallying cry, but how does it actually play out in real life? Let’s say a group of legislators rams through a law — a health-care law, say — that you find offensive. You’re an empowered sort of guy, of course, so what do you do, Don? Surely you don’t just wait for someone somewhere to bring a lawsuit, and then just wait for some judge somewhere to rule on that lawsuit? You’re an empowered man of action — tell me, what are you doing right now about it?

    “Even better would be if legislators acted circumspectly in the first place”. Indeed. Even more better would be if they could fly, so that our nation would be spared the pollution from their traveling everywhere via car and airplane. And their laser vision would preclude the need for a standing military.

    But having Congress have to explicitly justify their rationale under the Constitition for the bills they propose is at least a small step toward having them hopefully do the right thing.

    And we arrive back at your original point. You think it’s a step forward. I think it’s a pointless, if also harmless, effort that makes some people feel good without accomplishing anything. You’re imagining that this rule will somehow bring about a crop of politicians completely unlike the ones we’ve had before, without acknowledging that constitutionality has always been a requirement of every law ever, and yet here we are now. All along, the problem hasn’t been a lack constitutional justifications, it’s been that the justifications have occasionally been severaly strained.

    “I’m still struggling with why you think it is such a big inconvenience.” Again, that isn’t my point. My point is that this is pointless. Might as well make them do that rap intro I mentioned earlier (@14). It’s just as good an idea.

  • DonS

    tODD @ 20: Good post. This is a good discussion about issues that will be at the fore for the next few years, at least.

    “So … is it okay to trust in justices as the “ultimate authority” in constitutional matters, or not?” — I can see the basis for confusion because this is a nuanced point. The role of the judiciary is to settle controversies — real conflicts between real parties suffering real harms. This is what the judiciary does best, and sometimes in the course of deciding those controversies it must interpret the Constitution. This is appropriate judicial review and I, of course, have no objection to it. On the other hand, I do object to the prevalent modern legislative and regulatory attitude that it is the function of lawmakers to test the limits and push until the courts say we’ve gone too far. Congress and the Administration should have as strong an interest in upholding the Constitution as the judiciary does. Just because the judiciary has the final say doesn’t mean it has the only say. We harm citizens when we continually force them into court in order to protect their rights. This plays, of course, on both sides of the political aisle. The Patriot Act is an example of those on the conservative side pushing the limits of constitutionality, as you well know.

    As to the issue of justiciability, this refers to the major limitation on the power of the judiciary, namely that it has to have jurisdiction over the matter at hand. A court cannot issue advisory opinions, and must establish that the parties before it have standing. Political questions, such as declarations of war, impeachment proceedings, other Congressional rules of order and discipline, and the like are not justiciable. At the time of the passage of Obamacare, the House was considering the use of “deem and pass” as a means of passing legislation without actually voting on it. While many felt this to be unconstitutional, very few thought that the courts would agree to hear any suit related to the issue because it involved matters related to the inner workings of Congress. Deference to Congress in such matters is a separation of powers issue, and would be considered to be non-justiciable.

    Here is a definition of justiciability presented in a 9th Circuit case linked here: http://ftp.resource.org/courts.gov/c/F2/759/759.F2d.1378.83-6356.html

    The Supreme Court has indicated that an issue is a nonjusticiable political question when one of the following circumstances is present:
    “a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.”

    “Are you suggesting that ever-changing public opinion should inform “how the courts respond” to constitutional interpretation questions?” — Short answer — in the ideal world, no. However, in the practical world it does, and probably always will, at least to some extent. Judges are human. It is important that citizens having an interest in preserving and enforcing the Constitution make that interest known to our government, and hold them accountable, so that all three branches of government understand that we don’t want them to vitiate and emasculate the Constitution by bending it to whatever current popular opinion dictates.

    As to the point concerning controversy, you are certainly right that we, in our current partisan circumstances, cannot hope to avoid all constitutional controversy. My hope, however, is that as more citizens become engaged in understanding our Constitution and its limitations on federal power, at least some controversies can be avoided.

    “I didn’t even offer an opinion in this post, except that I think this new initiative is a good one.” And that Marbury v. Madison was correctly decided. And that “the concept of judicial review is often wrongly applied”. But yes, I was also thinking of other opinions you have offered elsewhere in which you made it clear that you were right and the Supreme Court was wrong. Guess which one of those two holds legal sway.

    Yeah, I don’t think those opinions you cited are all that controversial. Of course, in other posts I have stated my opinion, and sometimes I disagree with a court decision. And, of course, it is correct that the court’s opinion carries the day, and mine is a mere hypothetical. But again, that doesn’t mean we should just withdraw from the field of ideas and let the “experts” handle it. We have every right and responsibility to learn about our country’s governance and to make our opinions known. Those in authority over us are there as servants, and will do a better job with our feedback than without it.

    Now try using that sentence the next time you get pulled over. Do you think it’ll get you anywhere? Are you advocating that there are no experts, or that experts shouldn’t carry any more sway than non-experts? Would I be as good at your job as you are? Do you think you’re better than me, Don?

    Of course not. And I’m not saying that we are not to subject ourselves to the authority of those holding these positions. All I am saying is that we live in a representative democracy, and have an equal obligation with other citizens to understand how it works and to ensure it survives for our future generations. And, in particular, our elected representatives have an obligation not to trivialize the Constitution and to ensure that they can clearly articulate a Constitutional basis for every law they write.

    “You’re an empowered man of action — tell me, what are you doing right now about it?” — I’m writing, exhorting, and explaining — right now. I’m also voting and working to elect candidates whom I believe will best uphold the Constitution in their governance. Additionally, as an attorney, I occasionally have the opportunity to evaluate judicial candidates here in Orange County.

    Your last points are largely just existential in nature. Your view is that we really can’t do anything, so why try? Mine is that we haven’t tried to do anything, so why not try? So, we’ll just have to leave that one there.

  • DonS

    tODD @ 20: Good post. This is a good discussion about issues that will be at the fore for the next few years, at least.

    “So … is it okay to trust in justices as the “ultimate authority” in constitutional matters, or not?” — I can see the basis for confusion because this is a nuanced point. The role of the judiciary is to settle controversies — real conflicts between real parties suffering real harms. This is what the judiciary does best, and sometimes in the course of deciding those controversies it must interpret the Constitution. This is appropriate judicial review and I, of course, have no objection to it. On the other hand, I do object to the prevalent modern legislative and regulatory attitude that it is the function of lawmakers to test the limits and push until the courts say we’ve gone too far. Congress and the Administration should have as strong an interest in upholding the Constitution as the judiciary does. Just because the judiciary has the final say doesn’t mean it has the only say. We harm citizens when we continually force them into court in order to protect their rights. This plays, of course, on both sides of the political aisle. The Patriot Act is an example of those on the conservative side pushing the limits of constitutionality, as you well know.

    As to the issue of justiciability, this refers to the major limitation on the power of the judiciary, namely that it has to have jurisdiction over the matter at hand. A court cannot issue advisory opinions, and must establish that the parties before it have standing. Political questions, such as declarations of war, impeachment proceedings, other Congressional rules of order and discipline, and the like are not justiciable. At the time of the passage of Obamacare, the House was considering the use of “deem and pass” as a means of passing legislation without actually voting on it. While many felt this to be unconstitutional, very few thought that the courts would agree to hear any suit related to the issue because it involved matters related to the inner workings of Congress. Deference to Congress in such matters is a separation of powers issue, and would be considered to be non-justiciable.

    Here is a definition of justiciability presented in a 9th Circuit case linked here: http://ftp.resource.org/courts.gov/c/F2/759/759.F2d.1378.83-6356.html

    The Supreme Court has indicated that an issue is a nonjusticiable political question when one of the following circumstances is present:
    “a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.”

    “Are you suggesting that ever-changing public opinion should inform “how the courts respond” to constitutional interpretation questions?” — Short answer — in the ideal world, no. However, in the practical world it does, and probably always will, at least to some extent. Judges are human. It is important that citizens having an interest in preserving and enforcing the Constitution make that interest known to our government, and hold them accountable, so that all three branches of government understand that we don’t want them to vitiate and emasculate the Constitution by bending it to whatever current popular opinion dictates.

    As to the point concerning controversy, you are certainly right that we, in our current partisan circumstances, cannot hope to avoid all constitutional controversy. My hope, however, is that as more citizens become engaged in understanding our Constitution and its limitations on federal power, at least some controversies can be avoided.

    “I didn’t even offer an opinion in this post, except that I think this new initiative is a good one.” And that Marbury v. Madison was correctly decided. And that “the concept of judicial review is often wrongly applied”. But yes, I was also thinking of other opinions you have offered elsewhere in which you made it clear that you were right and the Supreme Court was wrong. Guess which one of those two holds legal sway.

    Yeah, I don’t think those opinions you cited are all that controversial. Of course, in other posts I have stated my opinion, and sometimes I disagree with a court decision. And, of course, it is correct that the court’s opinion carries the day, and mine is a mere hypothetical. But again, that doesn’t mean we should just withdraw from the field of ideas and let the “experts” handle it. We have every right and responsibility to learn about our country’s governance and to make our opinions known. Those in authority over us are there as servants, and will do a better job with our feedback than without it.

    Now try using that sentence the next time you get pulled over. Do you think it’ll get you anywhere? Are you advocating that there are no experts, or that experts shouldn’t carry any more sway than non-experts? Would I be as good at your job as you are? Do you think you’re better than me, Don?

    Of course not. And I’m not saying that we are not to subject ourselves to the authority of those holding these positions. All I am saying is that we live in a representative democracy, and have an equal obligation with other citizens to understand how it works and to ensure it survives for our future generations. And, in particular, our elected representatives have an obligation not to trivialize the Constitution and to ensure that they can clearly articulate a Constitutional basis for every law they write.

    “You’re an empowered man of action — tell me, what are you doing right now about it?” — I’m writing, exhorting, and explaining — right now. I’m also voting and working to elect candidates whom I believe will best uphold the Constitution in their governance. Additionally, as an attorney, I occasionally have the opportunity to evaluate judicial candidates here in Orange County.

    Your last points are largely just existential in nature. Your view is that we really can’t do anything, so why try? Mine is that we haven’t tried to do anything, so why not try? So, we’ll just have to leave that one there.

  • http://www.toddstadler.com/ tODD

    While I expect that this thread is now truly dead, I did want to say that it is not accurate at all that my view is “we really can’t do anything, so why try?”, as Don stated (@21). This does not mesh at all with what I actually wrote (@18): “By all means, let us all read and study the Constitution and vote and petition accordingly.” That is what we can do — it’s what we have done in the past, and, honestly, it’s about the only thing we can do for the future. To the degree that forums like this blog allow us to exchange ideas (and yes, this one has influenced me over time — even your posts, Don!), then let us engage in them. But, come on, not in the almost certainly vain hope that these discussions will influence politicians and judges themselves! But that they will influence our fellow citizens, who will then go on to influence politicians — namely by voting and petitioning according to their ideas, including any they picked up in such discussions.

    The upshot being that, while it is much more arduous work, your arguing here with consistency and force is more likely to have an effect on our nation, its government, and its laws, than this one congressional rule change. How about that?

  • http://www.toddstadler.com/ tODD

    While I expect that this thread is now truly dead, I did want to say that it is not accurate at all that my view is “we really can’t do anything, so why try?”, as Don stated (@21). This does not mesh at all with what I actually wrote (@18): “By all means, let us all read and study the Constitution and vote and petition accordingly.” That is what we can do — it’s what we have done in the past, and, honestly, it’s about the only thing we can do for the future. To the degree that forums like this blog allow us to exchange ideas (and yes, this one has influenced me over time — even your posts, Don!), then let us engage in them. But, come on, not in the almost certainly vain hope that these discussions will influence politicians and judges themselves! But that they will influence our fellow citizens, who will then go on to influence politicians — namely by voting and petitioning according to their ideas, including any they picked up in such discussions.

    The upshot being that, while it is much more arduous work, your arguing here with consistency and force is more likely to have an effect on our nation, its government, and its laws, than this one congressional rule change. How about that?