Dahlia Lithwick: Congress Shouldn't Consider the Constitutionality of Legislation

The left's premiere legal commentator drops a doozy today in her article on Christine O'Donnel at Slate.

O'Donnell explained that "when I go to Washington, D.C., the litmus test by which I cast my vote for every piece of legislation that comes across my desk will be whether or not it is constitutional." How weird is that, I thought. Isn't it a court's job to determine whether or not something is, in fact, constitutional?

David Bernstein picks this apart at Volokh.

Short answer: Senators swear an oath to uphold the Constitution. Of course they are obligated to determine whether a bill they are considering is constitutional. Where did Lithwick get the idea that courts, and only courts, should be concerned with the constitutionality of legislation?

Somewhat longer answer: The Constitution doesn’t vest the authority to determine the constitutionality of legislation in any single branch of the government. In fact, not only does the Constitution not grant the judiciary the exclusive power to consider the constitutionality of legislation, it doesn’t speak of judicial review at all. I think that judicial review is implicit in the Constitution, for the reasons stated by Chief Justice Marshall in Marbury v. Madison. But there is no contradiction between allowing the Court to exercise its authority in its own sphere (i.e., when a lawsuit comes before the Court) while the other branches determine the constitutionality of legislation in their own spheres. At least since the late 1950s (Cooper v. Aaron), the Supreme Court has asserted that if an elected official defies a Supreme Court precedent, that official is violating his oath to uphold the Constitution. But even if we accept that it would be a dereliction of a Senator’s duty to vote for a law that he knew the Court would deem unconstitutional, I don’t know of any reason why a Senator should vote for a law that he deems unconstitutional, even if the Supreme Court would uphold such a law; no defiance is involved in such an instance, just an independent assessment of constitutionality. Regardless, it’s hardly the case, as Lithwick suggests, that a Senator should ignore constitutional issues, vote completely based on policy preference, and wait for the courts to sort things out.

Apparently still not thinking Lithwick follows up that bit of genius with the following.

In 2003, O'Donnell said of the Supreme Court that "it's kind of like we have the nine people sitting there in Washington who have a constitutional monarchy and that is an abuse of the system." So I do wonder a little whether she's claiming that her view of what's constitutional trumps theirs. Not a lot of space for checks and balances in that reading.

I truly hope that Lithwick is smart enough to realize that having Congress also contemplate the constitutionality of legislation is a check and balance, on the Court.