Monday, March 21, 2011

Constitutional justification for proposed laws

One of the ideas that's been getting a lot of attention lately, particularly (though not exclusively) from the Tea Party movement, is a requirement that any proposed law state it's constitutional authority up-front. This is undoubtedly motivated by a perception that many laws (such as last year's health care overhaul law) are blatantly unconstitutional expansions of government power.

My perspective is that such a rule would be harmless political theater at best, and at worst would have the unintended consequence of actually killing perfectly good (and constitutional!) bills in the womb.

Any proposed law falls into one of 3 categories: clearly constitutional (for example, an enumerated power of the constitution, such as establishment of the post office), clearly unconstitutional, or “somewhere in the middle.” These are generally fuzzy boundaries and subject to quite a bit of interpretation, though, and even then they don’t guide politicians very much.

For example, laws to ban desecration of the flag are routinely proposed because they are politically very popular, yet these laws are also pretty clearly unconstitutional, having been adjudicated to the supreme court where majorities that include both liberals and conservatives (see Texas v Johnson and United States v Eichman) have found them to be violations of the 1st amendment. Politicians are often lawyers and would be familiar with the constitutional case law here, but politics is politics and the calculus says that support for such a clearly unconstitutional law is far better, politically, than not. Bills like these that are clearly unconstitional simply aren’t proposed for that very reason, or else politics trumps and a constitutional interpretation can be offered (even if courts subsequently would disagree), so I don’t see this exercise adding much value.

The vast majority of proposed laws, though, fall in the middle – they are neither clearly contrary to or authorized by the constitution, they are implied (the commerce clause being a frequent broad justification) or inferred or otherwise subject to interpretation.

So as a legislator you have the option to admit upfront that a politically popular bill is unconstitutional (which nobody will do), to redundantly explain something that is clearly authorized (which is a waste of time and effort), or to point out that the justification is subjective, which doesn’t accomplish anything useful. So I ask what purpose would be served here.

Of course, the constitution does explicitly make clear that the role of interpreting the law is assigned to the judicial branch. So one could argue that legislative opinions as to the constitutionality of a bill are themselves unconstitutional (or at best meaningless in any enforceable way). So we would find legislators offering bills with constitutional justification, only to be later found unconstitutional by the courts, or we would find perfectly constitutional and good bills being self-censored because the legislators cannot form a consensus around the constitutional basis for the law. The latter is, of course, an explicit goal of many conservatives who want to shrink the role of government, but that is a political goal here being presented in the guise of a constitutional process.

Since this is a rule that is largely being pushed by small-government conservatives who favor a strict interpretation of the constitution, I think it is worth pointing out some other unintended consequences that could follow. For example, there is nothing in the constitution that explicitly grants a federal role for the definition of marriage, or the banning of recreational drugs. And pro-life advocates would need to have a constitutional finding that a fetus is a person, which would in turn provide a constitutional precedent towards laws governing behavior of pregnant women (for example, criminalizing drinking or smoking while pregnant), which would perversely be precisely the sort of nanny-state expansion that most small-government conservatives fear.

Unless, of course, any of the constitutional justifications for a given law are later thrown out by a court.

In which case, one has to ask: if the court ultimately gets to decide the constitutionality of a law, then what purpose is served by declaring it up front?

No comments: