by Matt Barr

Bogus constitutional arguments

Our abstract discussion of the Constitution and how (and whether) we change laws is brought to the present case of Congress circling the constitutional wagons around Rep. William Jefferson by Prof. Reynolds:

Congress probably has the power, constitutionally, to immunize its members from prosecution while in office. Such legislation would be immensely unpopular, of course, and would cause a lot of people to lose reelection: "Vote for me -- I'm in favor of immunity for corrupt members of Congress!" isn't much of a slogan.

That's why members of Congress are making a bogus Constitutional argument instead of using their undisputed legislative powers: To avoid the very kind of legislative responsibility to the voters that the Constitution, and separation of powers, places squarely in their laps.

Agreed, but that's not the only reason: The other is that that's what you do now when your alternative is legislation that for whatever reason you don't want to pursue. You argue the Constitution already says your favored law is the law of the land.

A law punishes cohabitation? Don't get it changed, argue it's unconstitutional.

You're Puerto Rican and you can't vote for President? Argue it's unconstitutional.

Yours isn't among the states that have recently abolished capital punishment of the mentally retarded or of offenders who were 17 when they committed their crimes? You know what to do.

You're a Congressperson worried that your office is next on the FBI's list to search? Argue it's unconstitutional.

In 1961, a constitutional amendment was ratified giving citizens of D.C. the right to vote for presidential electors. Now, Puerto Ricans just go to federal court to try and get a judge to say the Constitution doesn't need to be amended, it already gives Puerto Ricans the right to vote in presidential elections.

What do you expect? If you're going to favor the Supreme Court ruling by fiat that the Constitution mandates your particular outcome, unless you've got some clever way to make sure they only do so when you would agree with the outcome, you're going to get what even you consider "bogus constitutional arguments." And the terrifying thing is, some of them are going to work.

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