Is It ‘Weird’ for Congress to Consider the Constitutionality of Legislation Before Voting on It?

Slate columnist Dahlia Lithwick seems to think so (h/t David Bernstein).  So I’m not accused of taking Lithwick’s words out of context, here’s the relevant passage, discussing Senate nominee Christine O’Donnell (R-DE):

O’Donnell explained that “when I go to Washington, D.C., the litmus test by which I cast my vote for every piece of legislation that comes across my desk will be whether or not it is constitutional.” How weird is that, I thought. Isn’t it a court’s job to determine whether or not something is, in fact, constitutional? And isn’t that sort of provided for in, well, the Constitution? In 2003, O’Donnell said of the Supreme Court that “it’s kind of like we have the nine people sitting there in Washington who have a constitutional monarchy and that is an abuse of the system.” So I do wonder a little whether she’s claiming that her view of what’s constitutional trumps theirs. Not a lot of space for checks and balances in that reading.

Apparently Lithwick doesn’t know that senators and congressmen (and a whole host of other officials – including federal law clerks of the kind both she and I were at some point) swear an oath to uphold the Constitution.  It seems that it would be hard to fulfill that oath if you don’t in good faith and to the best of your ability consider the constitutional dimension of whatever you’re voting on.  Yes of course not all congressmen are lawyers – though it’s unclear whether being one and even chairing the judiciary committee helps one think through constitutional issues – but you shouldn’t have to be a constitutional scholar to see that, for example, Congress cannot force everyone to eat three servings of fruits and vegetables daily.  (Though now-Justice Elena Kagan refused to say that.)

Indeed, the Constitution is silent as to which branch of government is to review the constitutionality of legislation.  Moreover, as we know from the foundational case of Marbury v. Madison, the judiciary’s role in doing so is merely (but rightly) implied, not explicit, in constitutional text.  There is no “weirdness” in courts exercising their constitutional powers by ruling on constitutional issues brought before them in lawsuits even as the other branches make constitutionality determinations in carrying out their own duties.  After all, isn’t a president who does something he consciously knows is beyond his lawfully vested Article II authority violating his own oath of office and potentially subjecting himself to impeachment for that very reason?

Yes, long gone, unfortunately, are the days when congressional debates focused on the constitutionality of proposed bills rather than their desirability, but shouldn’t Congress at least pay lip service to the idea that it needs a constitutional warrant for everything it does?

In any event, I’ll be on a panel with Dahlia this Thursday at the Missouri Bar Association’s annual meeting and will raise this issue to her.  (May also take on her bizarre accusation that Iowa Senator Chuck Grassley was appealing sub rosa to “Christian Reconstructionists” in asking at Kagan’s confirmation hearings whether the right to keep and bear arms pre-existed the Constitution – see David Bernstein’s simple rebuttal at the Volokh Conspiracy.)