Some thoughts on the three branches of government & questions of constitutionality:

Commonly held wisdom suggests that after Marbury v. Madison, the courts have the sole power over the constitutionality of laws. This is wrong. Rather (and appropriately in my opinion) the courts are the final stop (well, the Supreme Court in particular is “where the buck stops”) regarding the question of constitutionality, but the other two branches of government—if they do their jobs appropriately (and alas, more often then not, they do not)—have an equal say over questions of constitutionality. They just get their say earlier on in the game.

So how do Congress get to decide the constitutionality of federal laws? Very simple, they are supposed to know their constitutional limits, and they aren’t supposed to pass unconstitutional laws.

What about the executive? The President is supposed to veto unconstitutional laws. George Bush was not being a “good President” when he signed Campaign Finance Reform into law, doubting its constitutionality, and noting that it was up to the Supreme Court to decide that question. No, if the President believes a law to be unconstitutional, then the President has an obligation to veto that law (just as Congress has an obligation not to pass laws that are unconstitutional).

And the courts have far less power over what laws come into being than the other two branches of government. Congress and the President can prevent laws that are perfectly constitutional, yet unwise in their respective opinions, from coming into existence. The courts are allowed to strike down unconstitutional laws only (and have to justify their decision with a written opinion). Yet, unwise but constitutional laws must be allowed to pass.

Now I know many “conservatives” who decry “activist judges” would argue that courts often strike down laws that may be unwise (or not) but perfectly constitutional. Well, what about the much greater problem—a scandal if you will—of courts not striking down laws that they ought to? What about all of the unconstitutional laws that are passed by legislatures and signed into law by executives, that courts let go? Much of the federal law passed in the last 50 years and currently on the books is clearly unconstitutional.

Our founders envisioned a government with very limited powers. Government has certain limited “legitimate functions” and if the laws that government passes don’t fall into these very narrow areas of acceptable government power, then such laws are unconstitutional (or, at the very least, they violate natural right). While it’s true that state & local governments were given more leeway in their ability to pass laws in order to properly deal with the “minutiae” that state & local governments invariably will have to deal with (hence their general police powers, that the federal government lacks—or is supposed to lack), the principles of modern politics that found this nation likewise envision a strictly limited role for state & local governments as well.

When a court declares a law to be unconstitutional, it is effectively saying to some other branch of government (not the people), “you can’t." But when the legislature passes a law, more often than not, it's government saying to the people "you have to" (meaning government enacts a program which limits the liberty of the folks and forces or prevents us from doing X,Y, or Z). When courts are being “activistic” in striking down laws, they are in effect, operating in the tradition of conservatives like Ronald Reagan who are supposed to believe that “the government that governs least, governs best.”

It is the legislatures who pass laws (and the executives who sign them) that say, “the people have to.” They are the true villains. For instance, no court ever ruled Social Security into existence. And if we get socialized health care in this nation, it won’t be a court that is responsible for its coming into being. If courts are at all to blame, it is for not striking down these bureaucratic programs when the Constitution demands that they so do.