Independent Constitutional Duties

Whew, what a weird day. Sorry for the long, long delay…

Andrew Sullivan cites Ben Adler of Newsweek, and Ramesh Ponnuru of The National Review, clashing over the Pledge to America item calling for constitutional justification of each bill passed by the Congress. Adler, apparently, feels the duty is duplicative of the Supreme Court’s responsibility for safeguarding the Constitution; while Ramesh notes that the proposal doesn’t chip into the Court’s role — one he surprisingly supports (at least for today) — as the ultimate arbiter of constitutional law.

For once, Ponnuru is right, and in fact doesn’t go far enough. In the early Republic, it was understood that both the President and the Congress had independent duties to uphold the Constitution, not just at the extremes, but in the conduct of their day-to-day responsibilities. The “Take Care” clause as initially understood, for example, conferred on the President not a power, but a duty to veto or fail to enforce laws that he would support, but that he found ultra vires. As to Congress, the legal bar on extraconstitutional acts ought to be understood as ever-present. While it often takes a lawsuit to make it manifest, the Supreme Court is the Constitution’s last bulwark. Federal magistrates, and elected representatives, are the first and best line of defense.

This is especially true because there are some constitutional rules that the Supreme Court can’t enforce, due to separate constitutional limits (see this yet-to-be-published paper). For the enforcement of those rules, we must depend on the discretion of the other branches of government. The right’s brief affair with the Constitution, to the point of fetishization — something that’s sure to end as soon as they’re back in power — should inspire us to remind ourselves, and anyone who will listen, what the document actually says. It shouldn’t inspire us to be less mindful of those limitations that actually exist.

One comment

  1. What constitutional can’t the court enforce? I couldn’t quite understand from that abstract. Are they situations where essentially no one has standing to even bring the issue to the court?

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