September 25, 2007
On Constitution Day: Is Congress ignoring the Constitution?
Some members of Congress are voting to please their pollsters, not their conscience, law professors charged last week.
“Constitution Day is really something that should be required for members of Congress or state legislatures,” quipped Lynda Dodd at a forum of constitutional law professors at the Washington College of Law (WCL) to mark Constitution Day.
Presidents, judges, and representatives all swear an oath to uphold the Constitution. But is a legislator upholding the Constitution when he believes a bill to be illegal, but votes for it to please constituents, and relies on the courts to overturn it?
This type of buck-passing, the panelists said, is increasingly common in Congress. Stephen Vladeck pointed out that Sen. Arlen Specter (R-Pa.) filed an amicus brief with the Supreme Court contending that a bill relating to Guantanamo detainees was unconstitutional. Yet, he said, Specter had voted for that same bill, even while recognizing it was unconstitutional.
Jamin Raskin has personal experience of such pressure. The WCL professor, recently elected a Maryland state senator, told of a circumstance during his first session this spring in which a fellow legislator, mulling a proposed bill that was appealing but unconstitutional, said to Raskin, “Why don’t we just vote for it and let the courts strike it down?”
Raskin disagreed. After all, they took an oath to uphold the Constitution. And besides, he said, “the courts might get it wrong.”
Dodd pointed out that it isn’t just the courts who have a responsibility to defend the Constitution. Thomas Jefferson defended the view that the Constitution can be interpreted independently by individuals and later generations, she said.
But in recent years, there has been greater deference to the courts on the part of Congress. This is partly, she said, because of unwillingness to question the popular mood on certain topics, from national security to flag burning to guns in the schools.
In some cases, such as guns in the schools, a law passed by Congress is largely irrelevant, because Congress doesn’t have much to do with child safety in schools, Dodd noted.
Legislators aren’t naive; they expect these laws to be overturned, she said. Their votes are less about governing than about chalking up proof, for the next election, that they favor national security or oppose school violence. They’re engaging in “symbolic legislation” for the purpose of “position taking,” while passing on the job of upholding the Constitution to the courts.
One complication of relying on the courts was pointed out by Darren Hutchinson, who said that judges often disagree with each other and maneuver around precedent to uphold their views of the Constitution, which complicates the question of judicial supremacy.
It’s crucial to ask, he said, “What is meant by the Constitution?” In other words, how is it to be understood? Is the Constitution its text, or the traditional way of interpreting it? Is it court pronouncements, or public opinion? He agreed that the Constitution should be viewed as “an organic document.”
Schwartz: ‘Constitution is broken’
But for Herman Schwartz, the Constitution “was not very good when it was adopted,” and today is “really broken.” Quipping that he was the “designated stinker” in the group, he slashed the founders for building inequality into the Constitution, and slammed as deeply undemocratic a system that gives the same clout to a senator speaking for sparsely inhabited Wyoming as the senator speaking for millions of Californians. “That’s outrageous,” he said.
Add to that an “imperial judiciary” headed by Supreme Court justices who, like kings, are unaccountable and stay in office until they die or abdicate, and an amendment process that is “much too hard,” and the Constitution compares poorly with more recent documents, he said.
He saves his praise for modern constitutions that include a list of social rights, such as a right to health, food, and social security, he said. The United States compares poorly to its fellow nations in that regard, he said.
“For all these reasons, I’d suggest we have another constitutional convention,” he said. “But the likelihood is we’d just lose the Bill of Rights, so I guess we’ll just live with it.”
Raskin: ‘Celebrating all day’ in local schools
Raskin, though, said he’d been “celebrating all day.” He’d spoken with classes at Eastern Middle School and Montgomery Blair High School in Silver Spring, Md., part of his district as state
senator.
He’s celebrating the Constitution, he said, for its spirit of equality, its idea that sovereignty resides with the people, and its “most dramatic and radical” departure from the past, the separation of church and state.
The Constitution was an act of the people, not an act of government, he said. “We should not think we have to be a Supreme Court justice or even appellate lawyers to defend the Constitution,” he said.
But having a Constitution is not enough. Dictatorships also have constitutions. In a democratic society, he said, it’s our responsibility to test the meaning of our Constitution against human rights norms that have evolved through a global conversation.
Jefferson detested the notion of treating the Constitution with “sanctimonious reverence.” In that spirit, Raskin said, “we have to remember this is still a work in progress.”
Constitution Day was spearheaded by an AU alumnus, Sen. Robert Byrd of West Virginia, WCL ’63, who in 2004 inserted into a massive spending bill a provision that requires every educational institution that receives federal funds to hold programming about the Constitution each year around Sept. 17. The programs are intended to increase awareness of the Constitution.
