of the campaign-finance bill are arguing that President Bush should
veto it because it is unconstitutional. In making this case for a
veto, the opponents have raised a question whose importance transcends
the particular constitutional dispute at hand: namely, does the president
have a duty to make judgments about constitutional disputes in the
we tend to regard the protection of the Constitution as the exclusive
business of the Supreme Court. Indeed, the Constitution is regularly
assumed to be identical to the Court's interpretations of it. Politicians
and journalists say that policies are "unconstitutional"
when all they really mean is that the Court has held those policies
to be unconstitutional. But there is an older understanding of the
Constitution that holds that responsibility for its protection is
shared. If Bush were to veto the campaign-finance bill as a violation
of the First Amendment, he would take a small step toward restoring
that sound, but now dormant, understanding.
view has informed both sides of the campaign-finance debate. Supporters
of the bill have said that neither legislators nor the president
need worry about possibly unconstitutional provisions because the
Supreme Court will sort them out. Opponents have rightly suggested
that anyone who considers a bill unconstitutional should vote against
it; but too often their argument that the bill is unconstitutional
has relied solely on a prediction that the Court would strike it
down. That argument is incomplete without any showing that the Court
would be right to do so.
provides a striking instance of the hold that judicial supremacy
has on the minds of even thoughtful political commentators. Writing
in opposition to conservatives who are urging a veto, he observes
that these same conservatives want Congress to pass restrictions
on abortion that they know the courts may well strike down. How,
he asks, can they then demand that Bush veto a bill merely because
it might "turn out to be" unconstitutional?
Note the quick,
unexamined move from a discussion of the Constitution to a discussion
of the courts. To frame the matter this way is to ignore the possibility
that conservatives may act on constitutional judgments independent
of the courts. Conservatives can try to ban partial-birth abortion
because they know it is constitutional to do so, whatever the courts
have said or may say later; and they can try to block campaign-finance
regulations because they hold them to be un constitutional.
argument works only if the Constitution is whatever the Supreme
Court says it is-so that, for example, the statement "this
bill is unconstitutional" is equivalent to the prediction that
"the Supreme Court will strike down this bill." That's
an argument with a fine pedigree: Support for it can be found in
the writings of Justice Oliver Wendell Holmes Jr., and (arguably)
in the Court's 1958 case Cooper v. Aaron. But it makes
unintelligible the notion that the Court can get the Constitution
wrong, and thus also makes unintelligible dissents and overrulings.
view distinguishes between the Constitution and the Supreme Court's
case law. Presidents and legislators swear an oath to uphold the
former. But a constitutionalist political culture is hard to sustain
if the Constitution is held to be the exclusive property of an unelected
elite. In that case, lawmakers will not look to the Constitution
when doing their jobs-a phenomenon all too evident in the campaign-finance
debate. A judicial monopoly on constitutional interpretation poses
the additional danger of reducing the Constitution to a mere grant
of judicial power.
Matthew Franck has noted that in the debates over ratification of
the Bill of Rights, there is no record that the topic of judicial
enforcement of it ever came up. Evidently, to a large extent its
value was to codify principles that could be invoked in political
debate and used to guide political action.
used the Constitution in just this way when he vetoed a bill he
regarded as incompatible with it. Other presidents, too, have claimed
a role in constitutional interpretation beyond merely being the
chief selector of judges. Andrew Jackson famously vetoed the re-authorization
of the Second Bank of the United States because he had constitutional
objections. "Each public officer who takes an oath to support
the Constitution swears that he will support it as he understands
it, and not as it is understood by others," he said in his
also believed presidents should make constitutional judgments independent
of the courts. Supreme Court decisions, he said in his first inaugural
address, should be considered binding on the parties to a case and
deserve "very high respect and consideration in all parallel
cases by all other departments of the government." But if the
other branches had in every case to defer to the Court's constitutional
judgment, "the people will have ceased to be their own rulers,
having, to that extent, practically resigned their government into
the hands of that eminent tribunal."
Ronald Reagan's attorney general Ed Meese made a version of Lincoln's
argument. Much of the reaction was hysterical ("a calculated
assault on the idea of law in this country," wrote New York
Times columnist Anthony Lewis). But even liberals who detested
Meese conceded that much of his argument was sound-as law professor
Sanford Levinson did in the left-wing magazine The Nation.
And not even Meese's critics disputed that congressmen should vote
against a bill, and presidents veto it, if they judge it unconstitutional.
Even now, the
notion of independent constitutional judgment by the executive lives
on in weakened form. The first President Bush vetoed a campaign-finance
bill in part because he thought it violated the First Amendment.
The older understanding survives among liberals too, as John Ashcroft
discovered when he moved to stop assisted suicide in Oregon. Ashcroft
wanted to enforce the nation's drug laws, which preclude the prescribing
of lethal drugs. His critics said that in this case the drug laws
exceed the federal government's constitutional powers-even though
the Supreme Court had never so ruled. What they wanted, though they
did not say it, was for the executive branch to reach that constitutional
too, must make constitutional judgments. Sen. John McCain has concluded
that the campaign-finance bill is constitutional. The merits of
his case aside, given his own understanding he can in good conscience
work to pass the bill-whatever the Supreme Court ends up doing.
Bush signs the bill, he will have no such defense. In the month
of his inauguration, he said that he regarded key provisions of
the bill as unconstitutional and would therefore veto it. Those
provisions are still there. If he still believes that the bill is
unconstitutional, he cannot in good conscience do anything but veto
it. Even if he thinks it is a close call, he should err on the side
of not doing damage to the Constitution unless the bill is vitally
necessary, which is clearly not the case here.
now believes the bill to be constitutional. If so, he should explain
his change of heart. Offering such explanations is a way to involve
the public too in constitutional judgments. The Constitution is
not the property of judges and lawyers alone, or even of politicians.
We the People also have a constitutional role to play.