Thursday, September 23, 2010

Dahlia Lithwick - 'It’s Weird For a Senator to Consider The Constitutionality of Legislation' / David Bernstein - 'No, No it is Not'

It is actually kind of sad that someone would ask that question / make that statement.

"Lithwick in Slate:

O’Donnell explained that “when I go to Washington, D.C., the litmus test by which I cast my vote for every piece of legislation that comes across my desk will be whether or not it is constitutional.” How weird is that, I thought. Isn’t it a court’s job to determine whether or not something is, in fact, constitutional? And isn’t that sort of provided for in, well, the Constitution? 

Short answer: Senators swear an oath to uphold the Constitution. Of course they are obligated to determine whether a bill they are considering is constitutional. Where did Lithwick get the idea that courts, and only courts, should be concerned with the constitutionality of legislation?

Somewhat longer answer: The Constitution doesn’t vest the authority to determine the constitutionality of legislation in any single branch of the government. In fact, not only does the Constitution not grant the judiciary the exclusive power to consider the constitutionality of legislation, it doesn’t speak of judicial review at all. I think that judicial review is implicit in the Constitution, for the reasons stated by Chief Justice Marshall in Marbury v. Madison. But there is no contradiction between allowing the Court to exercise its authority in its own sphere (i.e., when a lawsuit comes before the Court) while the other branches determine the constitutionality of legislation in their own spheres."

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