by Matt Barr

Who do you trust with your Constitution?

Well, this is the monkey in the wrench, isn't it? Jonathan Rowe points out a flaw in the approach of those who would tamp down "judicial activism" by deferring to the constitutional judgment of Congress (via Prof. Barnett):

When Congress was exercising “legislative restraint” by considering itself bound by limited and enumerated powers, its judgment on this question may have merited the deference showed to it by Hamilton, Jefferson, and others as well. But when Congress has abandoned any sense of constitutional limits, then there would seem to be no real judgment of constitutionality to which to defer.

(Rowe has a longer post that's well worth reading at his own blog that goes into more detail.)

Deferring to the judgment of Congress on anything is a bad idea, and if you're going to frame the question the way Rowe and Barnett do, sure, I'm all for judges saying we can never vote on things ever again. If I have a rat problem, get me that cat, and if the cat starts peeing on and scratching up the furniture and making me sneeze then, well, at least the rats aren't bothering me anymore.

First, let's pull back from Barnett's comment and acknowledge that the only people who have a problem with the Court striking down acts of Congress are Congresspersons. When the Court decides that the Clean Water Act doesn't apply to a puddle in your yard, nobody cares. Well, you do if it's your yard, or if you're the Army Corps of Engineers, but I don't. We get into trouble when the Court starts rewriting 50 state constitutions and acting as though, for example, it knows more about trying criminals in Missouri than Missourians.

Barnett's question is, who would you rather have figuring out whether things are constitutional, the Supreme Court or Congress? Poll every adult American and the answer would be hundreds of millions to 535 in favor of the Court. But no serious observer of the Court in recent years can escape the fact it's making policy judgments in the guise of constitutional interpretation. "I want a do-over on my juvenile death penalty vote from 15 years ago, because... now it's unconstitutional!" You may gravely nod and muse that this is just as Marshall intended, I guess.

Laws can be changed. State laws even more easily than acts of Congress. They are changed, all the time. Some that aren't changed aren't enforced anymore. But that doesn't cover every situation! No. You should aspire to perfection in church, not in government. You'll still be disappointed, but there's songs.

The problem is that an edict from the Supreme Court can't realistically be changed. I'm sure that anyone who argues that it's a terribly hard row to hoe to change a state law will acknowledge that Supreme Court opinions are exponentially harder to reverse. There's your first problem. If you're going to hang your hat on the fact it's hard to change laws in the legislature, it doesn't make any sense to conclude that therefore, the Supreme Court should step in. Unless, I guess, you think the Court is infallible and will agree with your personal position on things 100 percent of the time. You must have another argument knocking around somewhere.

Maybe it's that you're impatient. If even one more Christopher Simmons has to be executed, then it's taken too long to come around to the enlightened view that people like him don't deserve to die. That seems to be the impetus on the Court itself: Mr. Justice Kennedy's argument for unconstitutionality of the so-called juvenile death penalty (as we've discussed, that's a very misleading term) was that states were changing their laws to outlaw the practice.

Five States that allowed the juvenile death penalty at the time of Stanford have abandoned it in the intervening 15 years, four through legislative enactments and one through judicial decision....

Since Stanford, no State that previously prohibited capital punishment for juveniles has reinstated it. This fact, coupled with the trend toward abolition of the juvenile death penalty, carries special force in light of the general popularity of anticrime legislation.

Roper v. Simmons took care of that "trend," in a way many death penalty opponents and liberty-lovers favor. But, while I'm not widely read, I have never heard what would be an honest argument for this: "Yes, democracy works, blah blah, but it takes too long, and that's why we need a Court that is nimble enough and responsive enough to the popular will to strike down laws before the people of a state get around to it." Does constitutional interpretation really have a countdown? Does this make sense on principle?

Framing all this as "I'd rather the Court than the legislature be in charge of figuring out what's constitutional" is sure to get an amen from the choir, but isn't really on point. A democracy rarely settles anything for once and for all. Every argument against our lives being run by a bunch of rich white men who lived 200 years ago equally applies to a group of nine people living comfortably in Washington today. Within specific limits -- the "abridging freedom of speech" and "no warrants shall issue except on probable cause"-type, clearly established limits -- we should be able to work things out for ourselves. Well, yeah. That's not just an argument in favor of a "living Constitution," it's an argument in favor of the Constitution.

The Constitution does not prohibit states from passing dumb laws. It doesn't even prohibit states from passing laws that infringe on liberty. (The Ninth Amendment!!! Right. Listing "freedom of speech" in the Constitution does not itself mean I don't have the right to wear flip flops in the shower. Quit trying to tell me it means no state can abridge any freedom I can think of, ever. There is that pesky Tenth Amendment, too.) What it does is ensure that we can change dumb laws and laws that infringe on liberty.

What the Court does too often today is take away the most powerful guarantee of the Constitution: that we -- everybody, with equal access and equal ability to debate and persuade, without being censored, without being thrown in jail for dissent -- can get together and go pass a new, different law or repeal an old one. In Roper, Kennedy basically said, "look at all the cute states outlawing the 'juvenile death penalty.' You can stop now, I've got it from here."

That's not democracy, it's not promoting liberty, and it's not Constitutional. Calling it "constitutional interpretation" does nothing more than make it easier to get people to agree that as between the Court and Congress, the Court should be doing it. But neither should. We should.

UPDATE: Discussion continued with reference to the "Congressional immunity" issue.

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