Blogger frustrates me by losing a post I put a lot of thought into. Instead I refer you back to this post, on which I based the new, lost post:
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.
Now let me add that this scandal -- the scandal of Wickard v. Filburn and its subsequent line of cases -- is only 1/3 the fault of the Supreme Court. Before that unconstitutional law made its way to the Supreme Court, it was unconstitutionally passed by Congress and unconstitutionally signed into law by the President (whenever Congress passes and the President signs an unconstitutional bill into law, I consider these actions unconstitutional; am I wrong?). In other words, Wickard wasn't just a product of judicial activism, but also of "legislative" and "executive" activism as well. If Social Security is not within the constitutional powers of Congress as Madison et al. envisioned them, then that and everything else the Congress does that doesn't comport with "original intent" is flat out legislative activism, (and executive activism as well, unless the bill became law by overriding an executive veto).
Question: How is "legislative activism" and "executive activism" any more legitimate than "judicial activism"?
Update: See Chapter 6 -- particularly from p. 143+ -- from Randy Barnett's Restoring the Lost Constitution, which deals with this issue and makes similar points.