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Unconstitutional, So What?

Accusations of “unconstitutionality” have not been uncommon; but they are heard with increasing frequency of late. Czars, Obamacare, Crap and Tax, the “fishy” email collection, the 2010 census, Obama is batting .500 against the Constitution. When I hear these accusations the first thing I think of is the Supreme Court, aren’t they the final arbiter of constitutionality?

One of the walls of the Supreme Court Building is inscribed with the phrase:

It is emphatically the province and duty of the Judicial Department to say what the law is.

Doesn’t the SCOTUS decide what the law is or what is unconstitutional? Actually, and in typical lawyer fashion, the answer is yes and no.

Even the Supreme Court’s authority to decide issues of constitutionality is in some amount of question. There is no power of “judicial review” included in the Constitution for the United States. In an 1803 case, William Marbury, who had been appointed Justice of the Peace by President John Adams (one of the “Midnight Judges” appointed as the Adams administration was leaving office after losing to Jefferson), asked the Supreme Court to force Secretary of State James Madison to provide his commission, which had never been delivered. The court declined, finding that the Judiciary Act of 1789 was unconstitutional. Chief Justice John Marshall wrote in his decision:

“It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.
So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.
Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law .
This doctrine would subvert the very foundation of all written constitutions.”

Reminding you of the vast number of lawyers involved in this over the years, and of the fact that Obama is himself considered, by at least some of them, to be an expert in constitutional law, it will come as no surprise that the Supreme Court’s decision in Marbury v. Maidson has been called unconstitutional. One of its original opponents was President Thomas Jefferson. Their objections never got much traction and judicial review has been the accepted law of the land since 1803.

The Supreme Court has, over the years, developed a set of rules for judicial review. One of these is the “Doctrine of Strict Necessity.” The Supreme court will decide these cases only when absolutely necessary, there are other branches of the government, all swearing allegiance to the constitution, who are capable of deciding the constitutionality of a proposed law or action. If the court has to step in and make a ruling it will only decide on factors that apply to that particular case.

Another is the “Doctrine of Clear Mistake”, Professor James Bradley Thayer explained this as “a statute could be voided as unconstitutional only when those who have the right to make laws have not merely made a mistake, but have made a very clear one,–so clear that it is not open to rational question’’ or, in more familiar terms, if it is unconstitutional beyond a reasonable doubt.

The “Exclusion of Extra Constitutional Tests” states that the court will only rule on legislation, not on policy, motives or wisdom. A face saving precaution for the legislature, they may feel stupid after the court finds their law unconstitutional but at least the court won’t call them stupid.

“Presumption of Constitutionality” is described by Justice Bushrod Washington as ”It is but a decent respect to the wisdom, integrity, and patriotism of the legislative body, by which any law is passed, to presume in favor of its validity, until its violation of the Constitution is proved beyond a reasonable doubt.” Think of this as considering the legislators innocent (competent?) until proven guilty (incompetent?).

“Disallowance by Statutory Interpretation” if it is possible to construe a certain law in a certain way to avoid a constitutional question it will be construed in this fashion.

“Stare Decisis in Constitutional Law”, Stare Decisis is a portion of a latin phrase, Stare decisis et non quieta movere, or “Maintain what has been decided and do not alter that which has been established”. Precedent is the lowest priority in constitutional law or, as the court put it, “[W]hen convinced of former error, this Court has never felt constrained to follow precedent. In constitutional questions, where correction depends upon amendment, and not upon legislative action, this Court throughout its history has freely exercised its power to reexamine the basis of its constitutional decisions.” This explains the SCOTUS reversing its former decisions 130 times between 1946 and 1992.

Justice Brandeis (SCOTUS 1916 -1939) described these rules this way:

“The Court developed, for its own governance in the cases confessedly within its jurisdiction, a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision. They are:
1. The Court will not pass upon the constitutionality of legislation in a friendly, non-adversary, proceeding, declining because to decide such questions is legitimate only in the last resort, and as a necessity in the determination of real, earnest, and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act.
2. The Court will not anticipate a question of constitutional law in advance of the necessity of deciding it. It is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.
3. The Court will not formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.
4. The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of… If a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter.
5. The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation.
6. The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits.
7. When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.”

All of these rules, while giving the SCOTUS the power to “say what the law is” also provide us with protection from usurpation of powers by the SCOTUS. It is interesting to note that these rules, while based on some ancient legal principles, are self imposed by the SCOTUS. By making themselves the last resort for constitutional questions they preserve the checks and balances built into the constitution and force our elected lawmakers to bear a portion of the responsibility to uphold the Constitution.

This information leaves us well short of the last resort in our accusations of unconstitutionality. Even Marbury had to wait three years to have his case heard, if Obamacare or Crap and Tax are passed, three years will see the damage done, possibly irrevocably. Even if the SCOTUS hears the case we are guaranteed it will focus on the narrowest possible effects and details, in the case of a thousand plus page law, there is little chance the entire act will be struck down, only portions of it.

We cannot pin our hopes on the SCOTUS, they are not the only people in our government who have sworn to support and defend the Constitution. Each and every Representative, Senator and the President himself have taken that oath, they need to be reminded of it, and to know that we understand the Constitution and will not stand for their forsaking that oath. Obama has disparaged the Constitution as:

“a charter of negative liberties. It says what the states can’t do to you. Says what the federal government can’t do to you but doesn’t say what the federal government or state government must do on your behalf.”

The men who wrote the Constitution saw government as the greatest threat to our liberty. History proves their opinion as does our lawmaker’s current behavior and pending legislation, without a list of “negative liberties” what would our current crop of legislators have done already? A list of what the government must do for Americans is very short, leave us alone and get out of our way!

Contributor to The Minority Report

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