Voting for unconstitutional laws, and a lawmaker’s oath

by Walter Olson on December 16, 2013

I’ve long found it exasperating when would-be lawmakers take the view that it’s okay for them to vote for measures that might be unconstitutional because, after all, the courts are there to backstop things. The Michigan businessman who’s challenging Rep. Justin Amash in a Republican primary is just out with a particularly flagrant quote along those lines to which I respond at Cato at Liberty.

{ 6 comments }

1 ras 12.16.13 at 2:50 pm

Salary and pension could be decremented when a law, that the lawmaker voted for, is overturned by the courts. Say, 5% per such decision.

2 Hugo S. Cunningham 12.16.13 at 4:35 pm

RAS’s proposal would make court nominations and confirmations even more politically fraught, if that were possible. Perhaps we could do away with the House entirely, and use the Senate only as a vehicle to accept or reject the President’s judicial nominations.

3 Jim Collins 12.16.13 at 4:48 pm

Some backstop the Courts don’t even follow the Constitution.

4 ras 12.16.13 at 5:50 pm

Hugo,

Or it might make them *less* politically charged as it would be in each side’s interest to both follow the constitution in the laws it passes, and to confirm predictable Justice’s who will interpret the law in accordance with the constitution. Confirming an extremist will mean your opponents will then have to confirm one of their own in rebuttal (when their time in power comes) and your pension will inevitably go “poof!”

Of course, all of this presumes rational behavior….

5 D 12.16.13 at 7:49 pm

Well spoken, Walter. I hope your response gets screen time.

6 Hugo S. Cunningham 12.17.13 at 3:50 am

Rep. Amash’s primary challenger Brian Ellis has a Romney-esque ability to put his foot in his mouth.

He could have made the point that reasonable people disagree about some Constitutional issues; the main job of a Congressman is to make wise use of the wide spectrum of powers granted under Article I Section III, and to block unwise uses. There is a tension between some provisions of the Bill of Rights and Constitutional obligations to “provide for the common defense,” eg by waging war.

Ellis also joins NJ Gov. Christie in denouncing “libertarianism.” Many of his conservative-Republican economic talking points are not that different from libertarian. Many of his most enthusiastic outside backers oppose not libertarianism in general, but rather crypto-pacifism, a view held by many but by no means all libertarians.

Curiously, Ellis’s issues page makes no mention of security issues.
http://www.ellis4congress.com/issues/

A footnote:
An example of contradiction in the Constitution, not resolvable by textual literalism, was presented in NYT v. Sullivan, an attempt by Alabama segregationists to silence unfavorable press coverage. Under the Seventh Amendment, biased judges and juries had an unquestioned right to enter whatever ruinous libel judgements they chose, without regard to the facts. The USSC, however, recognized that unrestrained prejudiced libel verdicts would nullify free speech under the First Amendment, and chose the First Amendment as the more valuable protection.

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