Author:Paul Brest

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In addition to the separation of powers, there are at least two intersections of the Constitution and the legislative process. One concerns the obligation and capacity of legislatures to assess the constitutionality of their proposed enactments. The other concerns the federal judiciary's role in inducing legislatures to meet their constitutional obligations. Within this context there are issues common to state and congressional lawmaking.

The American constitutional scheme obligates legislatures to assess the constitutionality of proposed enactments and to enact only legislation they deem constitutionally permissible. Although this proposition may seem obvious, it has often been contradicted by respectable lawmakers, who assert that legislatures should engage in policymaking without regard to the Constitution

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and leave constitutional questions exclusively to the courts. Therefore the reasons that legislatures are obligated, no less than courts, to determine the constitutionality of proposed enactments deserve explanation.

If, as Chief Justice JOHN MARSHALL asserted in MARBURY V. MADISON (1803), the Constitution is a law paramount to ordinary legislation, then to assert that legislatures need not consult the Constitution is the equivalent of asserting that individuals need not consult the law before acting. To be sure, people sometimes act in disregard of the law, subject only to the risk of sanctions if they are caught and a court holds their actions to be unlawful. But it would be perverse to conclude from this observation that we are not obligated to obey the law.

The structure and text of the Constitution certainly imply that legislatures must initially determine the legality of their enactments. For example, how would Congress know whether it had the authority to enact a bill without consulting Article I and the other provisions that delegate limited powers to the national government? Indeed, some provisions of the Constitution are explicitly addressed to legislators. Article I, section 9, provides, "No bill of attainder or ex post facto law shall be passed." The FIRST AMENDMENT says, "Congress shall make no law," and the FOURTEENTH AMENDMENT'S prohibitions begin with the words, "No state shall make or enforce any law.?" Article VI binds legislators and officials "by Oath or Affirmation to support this Constitution.?" Although this command does not entail that all constitutional questions are open to all institutions at all times, it does imply that a legislator must vote only for legislation that he or she believes is authorized by the Constitution. If history matters, the obligation of legislatures to interpret the Constitution was affirmed and acted on by various of the Framers and by early legislators and Presidents?some of whom, indeed, expressed this duty or prerogative even in the face of contrary judicial interpretations.

The existence of JUDICIAL REVIEW is sometimes thought to relieve legislatures of the obligations to determine the constitutionality of their enactments. But Chief Justice Marshall's classic justifications for judicial review in Marbury do not necessarily imply a privileged judicial function. As Herbert Wechsler wrote: "Federal courts, including the Supreme Court, do not pass on constitutional questions because there is a special function vested in them to enforce the Constitution or police the other agencies of government. They do so rather for the reason that they must decide a litigated issue that is otherwise within their jurisdiction and in doing so they must give effect to the supreme law of the land. That is, at least, what Marbury v. Madison was all about." (Wechsler, 1965, p. 1006.) Other arguments for judicial review have accorded the judiciary a special role, and in COOPER V. AARON (1958) the modern Court claimed that it was "supreme in the exposition of the law of the Constitution." But the Court has never implied that JUDICIAL SUPREMACY implies judicial exclusively, or that its privileged position relieves other institutions of the responsibility for making constitutional judgments.

Indeed, some constitutional issues?so-called POLITICAL QUESTIONS?may be committed to the legislative and executive branches to the exclusion of the judiciary. For example, it is widely assumed that the Senate's judgment in an IMPEACHMENT proceeding is not reviewable by the courts even though the decision may involve controverted constitutional questions, and even though the Senate's role in cases of impeachment is more judicial than legislative. In such cases, at least, if the legislature does not consider the constitutional questions, no one will.

If legislatures are obligated to consider constitutional questions, what deference, if any, should they accord prior judicial interpretations of the Constitution? In what might be called the judicial supremacy view, a legislature is in essentially the same position as a state or lower federal court: it must treat the Supreme Court's rulings as authoritative and binding. This was the view expressed by the Court in Cooper v. Aaron. Quoting Marshall's assertion in Marbury that "[i]t is emphatically the province and the duty of the judicial department to say what the law is," the Justices continued: "This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system."

The polar view is that legislators and other officials may, or must, apply the Constitution according to their best lights. This position was asserted by Thomas Jefferson, ANDREW JACKSON, and ABRAHAM LINCOLN, among others. In vetoing the bill to recharter the Bank of the United States in 1832, Jackson wrote:

It is maintained by advocates of the bank that its constitutionality in all its features ought to be considered settled by the decision of the Supreme Court [in MCCULLOCH V. MARYLAND (1819)]. To this conclusion I can not assent.? The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. 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. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress

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than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve.

The issues presented by these opposed positions are of more than theoretical or historical interest. They have surfaced in recent years in debates over Congress's authority under section 5 of the Fourteenth Amendment to interpret or apply the amendment differently from the Court, and over Congress's power to limit the JURISDICTION OF FEDERAL COURTS over particular issues. For present purposes, I will assume that Congress, as well as state legislatures, must operate within the constitutional doctrines exposited by the United States Supreme Court. What does this obligation entail?

The dimensions of legislative responsibility and some of the difficulties in meeting it are illustrated by considering a bill introduced in the 89th Congress to punish the destruction of draft cards. The bill was enacted in 1965, seemingly in response to public DRAFT CARD BURNING to protest the VIETNAM WAR. It was challenged on First Amendment grounds and upheld by the Court in UNITED STATES V. O ' BRIEN (1968).

The governing constitutional standard (as the Court later recapitulated it in O'Brien) was that "a governmental regulation is sufficiently justified ? if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is not greater than is essential to the furtherance of that interest."

Because this area of judicial doctrine was already well developed in 1965, legislators considering the draft card destruction law did not have to engage in much independent constitutional interpretation. They were, however, required to apply existing doctrine to the situation...

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