Thursday, April 07, 2016

A Very Knowledgeable Nonlawyer Discusses Who Gets to Interpret the Constitution

The nonlawyer of whom I speak: my husband, Paul Hager, aka The Hoosier Gadfly. If you follow that link, you'll see that the gadfly has not bitten since October 2013. The problem: he's unwilling to put up a post unless he's thoroughly researched every aspect. So once in a while, I summarize points he's made in conversation, or cut and paste sections from his emails. Today, I'm doing the latter.

Paul had the following to say in response to a post by law professor and author Randy Barnett, concerning whether Obama's recent executive orders violate a president's constitutional duty to "take care that the laws be faithfully executed." Paul is, to put it mildly, no fan of President Obama, but in his view, Barnett's argument ignores an important possibility. That possibility: that a president might, acting in good faith and exercising his/her judgment, conclude that a federal statute violates the Constitution, even if the Supreme Court has upheld that statute, and that the president's oath "to preserve, protect, and defend the Constitution" therefore requires that s/he refuse to act as Congress has dictated. The implications of this argument become more wide-ranging when we consider that state and local officials swear this same oath.

Enough introduction: here's Paul. (You can tell because he refuses to follow the American custom of putting punctuation inside quotation marks.)


Inevitably, interpretation of the Constitution is almost always performed by lawyers.  Lawyers have been so inculcated to the idea that the judiciary is the final say that they are blind to the Constitution as a POLITICAL structure that is supposed to exhibit homeostasis.  Legal education does not admit of the possibility that anyone NOT a member of the priestly class can figure out for themselves what the Constitution means.

I maintain that to "take care", a President must fulfill the pledge to support the Constitution.  When a law is in conflict with the original meaning of the Constitution, the President cannot enforce it.  If the Supreme Court weighs in and is wrong in the view of the President, (s)he cannot act.  In order to justify defying both Congress and the Court, the President must explain the reason fully and said explanation must be tied directly to the original meaning of the Constitution.  The ultimate remedy for a President who defies Congress and the Court for an unconstitutional reason is impeachment and removal from office.

While it is true that the SC is constrained to deal with only the small number of cases that come before it, bad decisions accrete over time.  They are almost impossible to reverse.  The result is a sclerotic system that is rigid and unable to return to its original state.

Also missing is the fact that state officials are bound to the Constitution.  The SC conveniently decided that state officials must defer to federal authority even if federal authority is wrong based upon the plain meaning of the Constitution.

The federal government is like the pre-Reformation Catholic Church.  Where is the Martin Luther who will challenge the 9 (8 at the moment) black-robed Popes and the rest of the entrenched hierarchy?