Unconstitutional? What are you a judge?

Via Ramesh Ponnoru, guess what Slate writer Dahlia Lithwick
thinks is weird?

A politician considering the constitutionality of a bill she would be voting on.

Yeah...

I have been fascinated by Christine O’Donnell’s constitutional worldview since her debate with her opponent Chris Coons last week. 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 /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.

Emphasis in original

There you have it. The potential constitutionality of a bill should not be a concern of a legislator, as it's somehow against checks and balances for an elected official to worry his pretty little head about that.

Oh and it "trumps" the courts. Never mind that both legislators and judges (and executives) take the same oath to protect and defend the constitution.

So of a legislator can't take constitutional concerns in their votes why vote at all? Why not have judges decide if a bill or even an agency has met the "legislature’s own publicly stated commitment to welfare" and adjust accordingly?

Lithwick's repeated confusion is a bit scary.

The message that the Obama administration is repeatedly pushing unconstitutional legislation is clearly important to O'Donnell—and important more broadly, too—and so, like you, I've been trying to understand what she's trying to say.

Huh. So Lithwick sees no potential constitutional questions of legislation that say... makes it illegal to not purchase a private government-approved health insurance. I guess in her world the government can and should have the authority tell you to buy a good or service. And not only that but such a thing is so patently obvious that anyone questioning the conditionality of that is incomprehensible.


Lithwick is either being quite disingenuous or is impressively thick. She seems unable to understand the simple concept of "I don't want to vote for something that's unconstitutional."

One wonders how Lithwick would react to a comedically unconstitutional bill. Like say one that would establish Lutheranism as the official Federal religion, eliminate military barracks and quarter the troops in local private housing, remove trial by jury, and allow cruel and unusual punishments.

Apparently in Lithwick's world legislators should not look at said bill and vote no, merely because they think it's unconstitutional. It's not their job to determine that.

They should vote on the bill independent of those concerns and then it can go to the courts to decide if it meets constitutional muster.

More broadly Lithwick clearly thinks that the unwashed masses have no place in determining "constitutionality". If a Senator has no authority to go "Huh, this law looks illegal I'm voting no," then an angry yokel has no place to protest the actions of his government.

That job's for the courts.