RSS
Hey, Washington: Stop constitutionalizing every issue
When all else fails, Democrats and Republicans use the courts to block programs they don't like. Call it the other nuclear option.
 
Politicians might love the Constitution a little too much.
Politicians might love the Constitution a little too much. (Win McNamee/Getty Images)

Not to sound like one of those mealymouthed, inside-the-Beltway, thumb-sucking, all-too-precious pundits who pine for the so-called good old days of collegial bipartisan compromise — but sometimes those folks have a point.

You needn't be president of the Bob Dole fan club or prone to swooning at the mere mention of Tip O'Neill to lament the increasing dysfunction of American political culture.

It's pointless to try to affix blame. Yes, the Republicans have taken obstructionism to a whole new level during the Obama years. Then again, it was Democrats who first "borked" a Supreme Court nominee — the deed that arguably jump-started the take-no-prisoners approach to ideological conflict.

But neither side would be able to throw as many wrenches into the works without the unusually large number of veto points in our political system. There's the presidential veto of legislation, of course, but also several mechanisms in the Senate, including the much-reviled filibuster. And when a party manages to maintain close to complete unanimity — as the GOP has done ever since President Obama took office — all it takes is a bare majority in the House to prevent any legislation from passing. Hell, in a fit of well-disciplined pique that majority can even shut down the government and drive it to default on its debts.

If you're happy with a particular example of obstruction, you'll see it as an expression of our magnificent system's ingenious checks and balances in action. If you're on the losing side, you'll call it gridlock. As for me, I'd prefer to see our elected representatives governing — which means reaching compromises about policy — and not gaming the system to ensure that nothing at all gets done.

And that bring me to one veto point in particular: the tendency of politicians to constitutionalize questions of policy.

Let me provide a rough-and-ready example: Republicans don't like ObamaCare. One way of expressing that dislike is to work legislatively (meaning democratically) for its repeal or reform. The GOP has been doing this, of course.

But there's also another approach, which involves raising constitutional objections to the law in both rhetoric and lawsuits. At the level of rhetoric, the constitutional objection amounts to asserting that the law is fundamentally illegitimate because it violates the foundational rules of the American political system in some way. When it comes to filing suits, the constitutional objection identifies this violation and asks a court to overturn part or all of the law through an act of extrademocratic judicial fiat.

Now, in principle there is nothing wrong with this process. It's simply the institution of judicial review itself, which has been an element of the American political system since Marbury v. Madison (1803). Today it plays an important role in every constitutional democracy in the world. All such systems need some form of judicial oversight to uphold and apply the rules of the political game to what is done by the players within the game.

The only problem is that the institution of judicial review creates a second-order level of politics with much higher stakes. It's a trump card that promises in one single judicial act to eliminate laws that one party dislikes, vitiating the need for any kind of compromise and removing the incentive to build legislative majorities to accomplish similarly sweeping goals through more democratic means.

All of this makes constitutionalization the true, permanently available "nuclear option" in our politics.

It's a huge temptation in our ideologically polarized times — and enormously corrosive of our civic culture when overused. Given the way Americans venerate the Constitution, the mere accusation that the other side has done something unconstitutional seems to impugn motives and cast aspersions, with implicit charges of un-Americanism always lurking in the background.

When the dispute is real, a constitutional appeal is perfectly justified. This covers many examples, including historic, landmark cases surrounding race, abortion, gay marriage, and the Affordable Care Act (old and new).

We see a more pernicious example when Republicans throw around charges of Obama being an "imperial president" who regularly transgresses the constitutional limits of his office. The same can be said about radical libertarian efforts to get the Supreme Court (or at least more than one justice) to overturn roughly eight decades of jurisprudence surrounding the Commerce Clause, which could instantly upend the welfare state from top to bottom, giving these partisans a victory they would never win at the ballot box.

What's the solution? There is none, at least beyond attempting to shame our fellow citizens into holding back from raising ordinary policy disputes to a constitutional level. There's an old-fashioned concept that philosophers once used to describe such civic restraint: prudence.

You think we're likely to see a resurgence of prudence in Washington, D.C., in 2014?

Me neither.

 
Damon Linker is a senior correspondent at TheWeek.com. He is also a consulting editor at the University of Pennsylvania Press, a former contributing editor at The New Republic, and the author of The Theocons and The Religious Test.

THE WEEK'S AUDIOPHILE PODCASTS: LISTEN SMARTER

Subscribe to the Week