Unconstitutional Acts

by Jay Johansen
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Limited Power

A fundamental principle of American democracy is that the power of the government is not absolute. In some countries, the president can shut down a newspaper that prints unfavorable articles about him; our president does not have that power. In some countries the police can throw someone in jail just because they think he's a trouble-maker; here they must demonstrate that you have actually broken the law.

Our Constitution spells out just what authority various parts of the government have, and includes a Bill of Rights specifying what the government may not do at all.

Of course the fact that we hold this as an ideal does not mean that every government official always respects it. One would have to be very naive to think that every "ethics investigation" is motivated purely by a desire to find the truth and advance justice, and that it never occurred to the investigators that this might destroy a political opponent. It would be nice to believe that every campaign finance reform bill is a sincere attempt to enhance the integrity of the electoral process, and that the politicians who support it just didn't happen to notice that this bill makes it easier for the people who support them to make big campaign contributions, while imposing new restrictions on the people who support their opponents.

The Constitution limits the power of government, but the Constitution is just a piece of paper. It has no magical powers to force government officials to abide by it. So what happens when the government "bends the rules", or simply ignores the Constitution all together?

The Role of the Supreme Court

In the United States today, we rely on the Supreme Court to step in when the president or Congress or a state government oversteps their authority. The Court will then declare the law or decree "unconstitutional".

Over the years the Court has over-ruled a number of acts of Congress and the state legislatures which violated various provisions of the Constitution, usually from the Bill of Rights. I checked into the frequency of such decisions a few years ago, and, for example, I found nine such cases in their 1987-88 term and five in the 1988-89 term.

Sometimes, government actions blatantly violate the Constitution, and few question the Supreme Court's decision when such laws are struck down. But often today, Supreme Court decisions depend on highly debatable interpreations of the Constitution.

Surely the most controversial such decision was Roe v Wade in 1973. The court declared that the Constitution requires that any state law regarding abortion must divide pregnancy into three trimesters, with different restrictions allowed in each. (In later decisions they declared pretty much all restrictions on abortion unconstitutional, but's that another story.) At that time, abortion was completely illegal in 33 states except when necessary to save the life of the mother. The remaining 17 states allowed abortion in various circumstances. The most permissive, New York, allowed abortion for any reason up to 24 weeks. But even New York did not allow third trimester abortions for "emotional health" as required by the Supreme Court. Thus, nine unelected judges on the Supreme Court unilaterally overruled the actions of 7,471 state legistlators elected by tens of millions of voters.

On what grounds? The court never claimed the authority to overturn a law simply because they think it is a bad idea; they claim to overturn laws because they are "unconstitutional". Exactly what Constitutional provision did these state laws violate? I have read the Constitution many times, and I cannot find the words "abortion" or "trimester" in it anywhere. The court explained that it found these concepts in the "right of privacy", and that this right "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy". One could debate whether the right of privacy really is this broad. (After all, her right to privacy apparently does not include the right to smoke a cigarette on an airplane, or to keep her personal finances private from the IRS.) But from the viewpoint of Constitutional law the argument is meaningless, because the "right of privacy" isn't mentioned in the Constitution either. The court itself was unsure exactly where in the Constitution it was, commenting "This right of privacy, whether it be founded in the Fourteenth Amendment ... or in the Ninth Amendment ..."

Even someone who believes abortion should be legal should be concerned about the precedent set here. Perhaps a right to privacy should be in the Constitution. Perhaps an explicit right to abortion should be in the Constitution. But should the Supreme Court have the authority to unilaterally amend the Constitution to correct whatever flaws it decides are there?

Unlimited Power

Who decides when the Supreme Court has overstepped its authority? As every American child is taught in school, our Constitution is based on a system of checks and balances. Congress makes laws, but the President may veto them. Every bill must pass both the House and the Senate, whose members are elected by different procedures. Some powers are retained to the states. Every official must be re-elected by the people again in two to six years. And so on. Except ... except that once the Supreme Court declares a law unconstitutional, there is no veto and no appeal. You cannot even hope to vote them out of office, because members of the Supreme Court hold office for life. And when they do finally retire or die, their replacements are not elected; they are appointed with no input from the people.

So why did our founders give the Supreme Court complete authority to overrule any state or federal law, and then on top of that make the members unelected and give them all life terms? Why were they so careful to put so many checks and balances on every other organ of the government, and then create this incredibly powerful agency with no rein on their power at all?

The simple answer is, they never gave the court such authority. Nowhere does the Constitution give the Supreme Court the power to overturn a law. James Madison's Notes of Debates in the Federal Convention of 1787 records that this idea was discussed. Madison proposed such a judicial veto -- with a provision that Congress could override it by a 2/3 vote -- and it met with instant opposition. John Mercer of Maryland "... disapproved of the Doctrine that the Judges as expositors of the Constitution should have authority to declare a law void". John Dickinson of Delaware argued that such a power would be uncontrollable, citing an example familiar to those present: "The Justiciary of Arragon ... became by degrees, the lawgiver." It was finally voted down by a margin of almost three to one.

Indeed, in Article III, Section 2, Paragraph 2 of the final document, they say that the Supreme Court shall have jurisdiction "with such exceptions, and under such regulations as the Congress shall make". If anything, it is Congress that can overrule the Court. Could they not invoke this clause and declare that one of the "exceptions" is reviewing laws for constitutionality?

Marbury v Madison

So where did the Court get this power? They gave it to themselves in February of 1803, as part of their ruling in the case of Marbury v Madison. The specific case centered around several people who were appointed justices of the peace in the last days of President Adams' administration. But the paperwork was not actually completed, and so when Jefferson took office, his secretary of state, James Madison, refused to deliver the official notices of their appointments. (I presume Jefferson and Madison wanted to appoint their own friends to these jobs.) Several of these men sued (including William Marbury, hence the name of the case), requesting the court to either force Mr Madison to deliver the appointments, or declare that they held the office even though they never received the paperwork.

Congress had passed a law giving the Supreme Court original jurisdiction over certain cases involving government officials failing to carry out their responsibilities. ("Original jurisdiction" is the authority to hear a case for the first time, as opposed to hearing an appeal of a lower court's decision.) The court observed that the Constitution lists certain types of cases in which the Supreme Court has original jurisdiction and certain types in which it has appellate jurisdiction. They declared that Congress was attempting to give them original jurisdiction in a matter in which the Constitution prescribed that they should only have appellate jurisdiction, and so they ruled that this law violated the constitution, and was therefore void.

Note the political brilliance of this move. First, they picked a case that was not very interesting or controversial of itself; about the only people interested in who got these minor jobs would be the people who thought they might get them. But second and most clever of all, the court spoke grandly of how they refused to accept the power to hear these types of cases that Congress had attempted to give them. They would not usurp a power which was not given to them by the Constitution. And so in the very act of repudiating an attempt to give them a minor power, they took for themselves a much greater power: the power to effectively veto any law.

The logic of the decision sounds eminently reasonable. The justices plaintively ask what they are to do when the government clearly violates the Constitution. Could they really impose a sentence on a person for breaking a law that Congress had no right to make in the first place? Constitutions are "absurd attempts on the part of the people to limit power" unless there is some mechanism for nullifying a government action which violates it. No lover of freedom and civil rights would deny that this is a real problem. But their solution was to appoint themselves the guardians of the Constitution. Now who shall guard the guardians?

Supreme Authority in Practice

It has been argued that this enables the court to protect minorities. Elected officials are, at least in principle, accountable to the majority. When the government tries to infringe the rights of a large number of people, those people can elect candidates who will act to protect their interests. But what happens when the government tries to infringe the rights of a minority, with the full support of the majority? After all, if sixty percent of the people vote to oppress and enslave the other forty percent, the fact that the vote was conducted in a fully fair, honest, and democratic fashion does not make it right. That, the argument goes, is where the courts come in. Because they are not elected, they are not subject to the whim of the mob, and can stand as an island of reason and justice in the midst of an ocean of oppression.

As an example of this scheme in practice, its proponents point to the America of the '50's and '60's. While the majority were willing to tolerate if not actively support institutionalized racism, the courts took steps to abolish it.

The problem with this idea is that it assumes that judges are morally superior to the population in general and the legislatures in particular. On the issue of race in the 1950's, maybe this was true. But on that very same issue in the 1850's, it clearly was not.

In what is probably the Court's most infamous decision, Scott v Sanford in 1857, Dred Scott, a black slave, argued that he became free when his master took him to a free state. The court ruled that Scott had no standing to sue in the first place, because "It appears by the record that the defendant is a negro; born a slave, and therefore ... he is not and cannot be a citizen", and of course only citizens can bring cases to court. They further ruled that the Missouri Compromise, which forbade slavery in the Missouri Territory, was unconstitutional because it interfered with the slave owners' Fifth Amendment property rights.

Abraham Lincoln denounced this as a usurpation of power. In his first inaugural address in 1861, he said,

The candid citizen must confess that if the policy of the Government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.

What Happens Next?

It would be interesting to see what would happen if Congress were to invoke Article III, Section 2, Paragraph 2 of the Constitution and declare that the Supreme Court is no longer authorized to hear challenges to the constitutionality of a law. Representative Bob Dornan proposed a bill along these lines in 1995, HR 1958. It would take away from the Court the authority to hear cases about the constituionality of laws regarding abortion. It went nowhere, but what if Congress managed to pass such a law? Would the court declare such a law unconsitutional?

While such an act would certainly be radical, it would not be entirely unprecedented. Effective September 25, 1988, Congress removed the right to appeal most cases to the Supreme Court. There was no constitutional battle because the justices had been requesting such an act for years, in order to reduce their workload.

The issue was touched on in the case of Webster v Doe in 1987. A former CIA employee challenged his discharge from that agency on constitutional grounds, claiming that he had been discriminated against because he was a homosexual. Part of the agency's defense was that he had no right to sue, based on the Administrative Procedures Act, Sections 701, 702, and 706, which states that decisions of government agencies are not subject to judicial review when "agency action is committed to agency discretion by law". The court's decision partially conceded Congress' authority to pass such a law, but worried about the "serious constitutional question that would arise if a federal statute were construed to deny any judicial forum for a colorable constitutional claim."

In practice, however, no such law is likely to be passed anytime soon. I once discussed the possibility of an act of Congress to overrule a Supreme Court decision with a member of the House (specifically, Roe v Wade). While he believed that it would be within the Constitutional authority of Congress, he also had no doubt that it would never pass. While many Congressman resent "judicial legislation", they fear that such a bold move would be too dangerous. Who knows what the ultimate repercussions will be? If you managed to overrule one controversial court decision that you don't like, what will happen to those six other controversial decisions that you do like? And on divisive issues, having the courts make a decision takes the political heat off Congress.

There has been a movement lately toward "judicial restraint", the idea that judges should voluntarily refrain from interfering with other branches of government without clear constitutional grounds. But self restaint is a very weak defense against usurpation of power. If we are going to rely on judges to voluntarily refrain from abuses, why not rely on the legislatures to exercise the same kind of restraint? Indeed, why have a Constitution at all -- why not simply rely on the good character of a dictator?

Constitutional Amendment

What are the limits of the power of the court? It is usually assumed that particularly disliked court decisions, such as abortion and the brief excitement over flag burning, can be reversed by a constitutional amendment. This process is slow and cumbersome, but at least it offers some avenue.

But the procedure for amending the Constitution is part of the Constitution. When the Equal Rights Amendment was before the country in the 1970's, several states voted to ratify and then later voted to rescind ratification. Is such a recision valid? The issue became moot when ERA failed to get enough votes with or without such recisions, but under current thinking, surely such a question would be decided by the Supreme Court. Thirty-two states have passed resolutions calling for a convention to enact a balanced budget amendment; advocates of the idea say they need only two more to meet the Constitutional requirement of thirty-four. But opponents point to differences in wording, and argue that there must be thirty-four identical resolutions to meet the constitutional requirements. Surely this, too, would be decided by the Supreme Court.

Could we really be confident that the justices' decisions on such procedural questions would not be colored by how they felt about the amendment itself? Given the imagination the justices have shown in interpreting the Constitution, surely they could find some grounds for striking down even an amendment if they wished to do so.

Even if they allowed an amendment to pass, it becomes part of the Constitution, and thus subject to the interpretation of the Supreme Court.

Conclusion

If the courts had limited themselves to over-ruling laws which clearly violated the plain text of the Constitution, there might never have been any argument. Instead they have expanded the concept of unconstitutionality to vetoing laws they simply don't like, often paying the barest lip service to the Constitution. Some, perhaps most, of their decisions are good justice, but they are bad law. And that is the most unconstitutional act of all.
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Posted 9 Sep 2000.

Copyright 1996 by Jay Johansen
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