Friday, July 06, 2007


Who Enforces the Constitution?

We often speak and write with glowing praise about the wise men who drafted our federal constitution. It is said to be a wonderful document, 220 years old, and a model for every country that has adopted a democratic form of government since 1787. All that said, I believe that there are some features that our constitution lacks. The framers were not foresighted enough to see every possibility.

For starters, the enforcement mechanism is weak. "Congress shall make no law ..." etc., regarding freedom of speech, establishment of a religion, etc. Well, suppose Congress does make such a law? What then?

The framers supposed that the President would use the power of the veto to prevent any such unconstitutional law from taking effect. We've seen how well that idea works in practice.

Chief Justice John Marshall discovered (or invented?) another way of stopping unconstitutional laws from taking effect. He asserted the principle of judicial review of laws and other acts of the legislative and executive branches of government. That has worked a little better, but it's not perfect.

Thomas Jefferson (a dangerous radical if there ever was one) had the idea that the people would demonstrate and rise in revolt against an unconstitutional or otherwise unjust law. He argued that there should be such a revolution every generation or so and that the new constitution would have a rather short life span. That idea went nowhere, also.

Unlike the constitutional courts in some countries, our own Supreme Court does not review legislation until someone has brought a lawsuit against it. An obviously unconstitutionl law or act of a President can stand until someone brings a suit to the Court and the Court decides to strike down the act or law. This method of enforcing the constitution is limited by the requirement that the person bringing the suit to the Court has "standing," or can show that he or she has been harmed because of the law.

In recent times the Court has made it very difficult to bring such suits forward because of the "standing" requirement. Recently an action by the President that involves awarding federal money to certain religious groups was challenged in court by a group supported by the ACLU. A federal court ordered the suit dismissed because the plaintiffs lacked "standing." The plaintiffs were arguing that some of their tax money was going to support religious organizations and that such support violates the First Amendment proscription on the establishment of a religion. I suppose that the court reasoned that simply having one's tax money spent on supporting a religion that one doesn't believe in does not constitute harm. It's like arguing that my tax money shouldn't be spent on a wrong war in Iraq. Once you've paid your taxes, the money isn't yours any more and what the government does with it is not subject to your beliefs.

I also disagree with the decision of the President to spend federal money in supporting his favorite faith-based groups. Even though Congress hasn't established a religion, this spending clearly favors certain religious groups over others. Perhaps the suit should have been initiated by a religious group that does not share in the President's largesse.

The conclusion is that the existing mechanisms of enforcing the constitution do not always work. Is it time for one of Thomas Jefferson's revolutions?

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