A People’s Constitution
Not just for nine Americans to read, and to follow.

By Ramesh Ponnuru
From the March 25, 2002, issue of National Review

These days, 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.

The modern 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.

Andrew Sullivan 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.

Sullivan's 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.

The alternative 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.

Political scientist 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.

George Washington 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 veto message.

Abraham Lincoln 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."

More recently, 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 judgment itself.

Legislators, 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.

If President 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.

Perhaps Bush 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.