A large part of Liberty Legal Foundation’s mission has become, by necessity, educating citizens and politicians alike about the foundational tenets of our Constitutional republic. America’s public school system has apparently been failing us for so long that we now have Congressmen and State legislators that don’t understand the basics about our form of government. This week I witnessed yet more proof of this fact.
This week the Tennessee legislature unanimously passed a bill that seemed to be blatantly unconstitutional. When constituents e-mailed their state senators asking why they voted for the bill, the responses were very revealing. One Senator responded by saying “Legislation is only unconstitutional when the high court deems it so.” Another Senator replied to the allegation that he voted for an unconstitutional bill by saying, “Then I am sure it will be struck down in court.” Both of these statements reflect a shocking disregard for the Constitution, for the Senators’ oaths of office, and for the rights of their constituents. Naturally, we could not let such statements go unanswered. Read our response HERE.
Unfortunately, my experience tells me that these statements reflect the attitude of most members of Congress and of the 50 state legislatures. This attitude, however, is not entirely the fault of our so-called “representatives.” Since the War Between the States, Americans have been taught that the judicial branch of government is the only branch that can determine whether or not a particular law is constitutional. This is simply not true. Every member of all three branches of government has an obligation to follow the Constitution. The judicial branch may have the right make final decisions when a dispute arises over real-world application of the Constitution, but this does not mean that an act of government can’t possibly violate the Constitution until a court says so. It also does not mean that members of the executive and legislative branch have no obligation to consider the constitutionality of their actions before they act. Both of these conclusions are illogical and demonstrably false. Yet they represent the attitude of most legislators from Nancy Pelosi to your local representatives, and most members of the executive branch from the President down to your local Sheriff.
Last fall U.S. Supreme Court Justice Antonin Scalia, testifying before the Congressional Judiciary committee, confirmed that all Congressmen have a duty to follow the Constitution BEFORE passing a bill. Scalia explained that the Court gives deference to Congress because the Court assumes that individual Congressmen considered the Constitution before passing any legislation.
Just seven years ago the Tennessee Attorney General wrote an official and published opinion telling the Tennessee Legislature that “A legislator violates the oath of office…by voting for a bill or resolution that ‘appears’ to him or her to be ‘injurious to the people,’ or by consenting to ‘any act or thing…that shall have a tendency to abridge their rights and privileges’ under the Tennessee Constitution.” Tenn.Op.Atty.Gen.No. 05-106, 2005 WL 1839886. Apparently none of Tennessee’s Senators care whether they’re violating their oath of office.
The current attitude of most legislators also runs contrary to basic logic. If it were true that legislators had no duty to consider the constitutionality of their acts, there would be no need for them to take an oath to uphold the Constitution. If considering the Constitution was the sole responsibility of the courts, only the judicial branch would be required to take an oath to uphold the Constitution.
Assuming logic is too much to ask of our so-called leaders, lets apply common sense to their current attitude: If no law was unconstitutional until a court ruled it unconstitutional, then Congress could pass a law calling for the immediate killing of all Christians (for example). Apparently Tennessee’s Senators believe that such a law would be immediately enforceable, at least until the courts could sort it out. More to the point, these Senators apparently believe that they would have no duty to oppose such a law, at least not on constitutional grounds.
If you think my law-to-kill-all-Christians example is too outrageous, here’s one ripped from today’s headlines: a President could sign an executive order confiscating most private property in America, and that law should be enforced by your local Police and National Guard unit, at least until the courts rule it unconstitutional. Until recently America’s military and most law enforcement agencies taught their members the difference between a lawful and an unlawful order. They taught them that unlawful orders include any order that clearly violates the Constitution. They taught them that it is illegal for any of them to follow an unlawful orders. Our military and police used to be taught these things so that America could avoid the tragedies of Nazi Germany.
As the world collectively decided at the Nuremberg trials, claiming that “I was just following orders” is not a defense we will recognize when one violates the clear and undeniable rights of other human beings. Apparently the members of America’s legislative and executive branches have now convinced themselves that a variation of the Nuremberg defense will absolve them of any responsibility when they violate the clear rights of the people the were elected to represent. They’re now telling themselves, and us, that anything they do is OK, at least until a court says otherwise.
The false belief that only the judicial branch has a responsibility to consider the Constitution comes from a long-standing misunderstanding about the separation of powers between the three branches of our government. Early in our history the U.S. Supreme Court correctly pointed out that it has a duty to interpret the Constitution and apply its interpretations to the facts of cases brought before the Court. However, that is all it does. This does not mean that the judicial branch is the only branch that can interpret and apply the Constitution. It also does not mean that either of the other branches are required to agree with the Court. The other branches could, if they choose to do so, continue to operate as if the law was constitutional. The reason that this almost never happens is because the functional operations of the other two branches almost always require the willing cooperation of the judicial branch.
When the Supreme Court rules that a law violates the Constitution it is simply telling the other two branches that the judicial branch will not recognize that law. Since most laws cannot be enforced without the help of the judicial branch, and because people harmed by unconstitutional laws can get court orders prohibiting government agents from enforcing the unconstitutional law, the effect of the judicial branch ruling a law unconstitutional is to tie the hands of the other two branches as it relates to that law.
This may seem like splitting hairs, but it is a VERY important point that has been forgotten by most people running all three branches. This concept is at the core of the separation of powers. It is a recognition of where authority begins, to whom it flows, and how much authority is given to each branch. Many of the problems we see in our government today can be directly linked to the lost understanding of our separate and co-equal branches of government.