A couple of weeks ago I mentioned a truly bizarre piece of legislation that would empower Congress to overturn Supreme Court rulings, throwing separation of powers effectively out the window. I wanted to give you an update.
As you may recall, Rep. Ron Lewis (R-Ky.) unveiled the “Congressional Accountability for Judicial Activism Act” (H.R. 3920) in early March. The idea is crazy, but straightforward: two-thirds majorities in the House and Senate would be able to overturn court rulings they don’t like, without having to worry about the pesky details associated with amending the Constitution.
It even springboards off an idea from Robert Bork, of all people, who recommended a constitutional amendment years ago encapsulating Lewis’ idea. Of course, Lewis’ proposal is far dumber, because it’s packaged as a routine piece of federal legislation.
As anyone with even a rudimentary understanding of American government can tell, the bill is obviously unconstitutional. Congress can’t just pass a law to empower itself to overrule the Supreme Court. No serious person could argue that Lewis’ legislation is anything but an absurd stunt.
But what I wanted to mention by way of an update is that a surprisingly large number of House Republicans have signed on to this stunt as co-sponsors. Upon its introduction, 11 Republicans joined Lewis in backing the legislation. Since then, instead of recoiling in embarrassment from such transparent nonsense, eight more Republicans have signed on.
Yes, 19 lawmakers do not represent broad support for a bill; I realize that. But considering the scope of this lunacy, one would like to think even the most conservative members of the GOP would want to distance themselves from the legislation, not sign on as co-sponsors.
Maybe if we took up a collection, we could sponsor a junior high civics class for these guys.
Moreover, since my original post on the issue, the bill has actually generated some broader attention. Atrios and Eugene Oregon have mentioned it, as has Slate’s Dahlia Lithwick.
I can’t decide if public attention is a good thing. If Lewis wants publicity for his lunacy, maybe all of this is counterproductive. Yet I continue to believe that efforts such as these should be highlighted to demonstrate how radical the GOP has become in its basic approach to government.
Indeed, Lithwick, in explaining why such efforts matter, called the legislation “one of the dumbest ideas ever.”
The best evidence that congressmen shouldn’t get into the business of interpreting the Constitution? Ron Lewis pithily arguing that just because Marbury v. Madison is 200 years old and the cornerstone of modern judicial review power, it’s not in the Constitution so it’s not all that important.
So what? you’re thinking. One more dumb bill introduced in Congress by someone more interested in getting his name in the papers than enacting real laws. It’s just an unconstitutional bill that doesn’t purport to redress the wrongs it decries. Why does it make me so cranky?
I’ve never been one to argue that demagogues on the right are any worse than demagogues on the left. But this practice of judiciary bashing is misguided. There is an important and real debate raging over whether the Constitution is a living document or a dead one. The question concerns whether courts should strictly construe the document (and essentially impose the framers’ law), or construe it to reflect the evolving mores of a changing society. Legal scholars far smarter than Lewis and me devote lifetimes to thinking about this stuff. And reasonable minds can differ on the merits. Antonin Scalia recently expounded on the strict constructionist view. Stephen Breyer has argued for the living model. And there are democratic ways to make Lewis’ point, especially if you are a congressman: If you don’t like judges who aren’t strict constructionists, work hard to keep them off the bench.
But Lewis wants to upend the whole bench instead. His plan represents a categorical refusal to be bound by the decisions of any judge holding a “living Constitution” view. It says, and increasingly pundits on the far right have argued, that anyone who interprets the Constitution using a theory that differs from one’s own is simply not a judge, and that law as decided by such judges is simply not law. That goes beyond demagoguery to arrogance and lawlessness. Whatever I may think of Justice Scalia and strict constructionism, I would never suggest for a moment that his decisions do not bind me.
Congressman Lewis’ bill shouldn’t be made into more than it is: a silly little piece of shucking and jiving to polarize voters and get his name in print. I hereby kick myself for putting it in print. But this legislation represents the crossing over of a line — from contempt for any judge who doesn’t see things Lewis’ way — to contempt for the bench as a whole. And that shouldn’t go unnoted.