Thursday, March 18, 2004

Chief Conspirator Eugene Volokh and Slate's Dahlia Lithwick seem to be having a bit of trouble with the concept of democracy. Now, I say, "having a bit of trouble with", rather than the obvious, "loathing with unbridled passion", because (a) the latter would be so completely expected as not even to be worth mentioning, and (b) the two being fairly well-respected, legally educated minds, one would not expect them to have so much difficulty mastering such a simple concept.

At issue is a bill, HR 3920, proposing to allow Congress to override (by a two-thirds vote in both houses) any Supreme Court ruling to the effect that a particular statute is unconstitutional. Now, I understand that this bill is nothing short of a heresy against America's anti-democratic judicial religion, and that any adherent of the Church of the American Judiciary would therefore reject it out of hand as completely violating the Constitution, as interpreted by the High Priests of that Church. But Volokh's and Lithwick's difficulties with the bill go beyond mere dogmatic rejection of it. In fact, they honestly can't even seem to understand it.

Volokh's problem seems to stem from being so wedded to the idea of judicial supremacy that he simply can't imagine a world beyond it. Let us suppose, he offers, that Congress overrides a ruling in some case that a particular law is unconstitutional, but a similar (though not identical) case is later brought challenging the constitutionality of the same law. "Why should the Court do anything but strike the law down?", he asks. After much rambling, he seems--just barely--to stumble upon the obvious answer: "perhaps a Congressional veto of a Court decision striking down a statute might automatically mean the statute is per se validated against all future challenges, though that would pose its own problems." What those problems are, he doesn't say. Perhaps respect for democracy poses, in his view, a whole host of problems so self-evident as not to require mentioning.

Lithwick, meanwhile, goes on and on about two competing theological visions of the Constitution: that it's a "living" document, re-interpreted by wise judges over time, and that it has a fixed meaning, requiring a "strict constructionist" interpretation by those same wise judges. The idea of allowing democratically elected authorities to have input into the constitution's interpretation is so strange to her, though, that she misunderstands it completely, summarizing it with the phrase, "anyone who interprets the Constitution using a theory that differs from one's own is simply not a judge"--a position that she equates with "arrogance and lawlessness". In other words, the decision of a two-thirds majority of both houses of the elected representative bodies of a functioning democracy is, in her view, best characterized as simply "one's own" opinion.

This confusion is strange, because, as a matter of fact, Lithwick's home country, Canada, allows just such a legislative override of a judicial ruling of unconstitutionality. The Canadian constitution's "notwithstanding" clause explicitly lays out the procedure by which a legislature may, by a supermajority vote, override the Supreme Court's decision that a given piece of legislation is unconstitutional. The clause has even been used, in the (in)famous case of Quebec's language law, which mandated that French be given prominence over English in all public signs.

Now, I certainly don't endorse the result of that particular use of the clause, but the fact is that the world didn't collapse when ultimate authority was wrested from the courts and handed to a legislature. Ms. Lithwick and Prof. Volokh may not like such an arrangement--indeed, I'm quite sure they do not--and they certainly may declare it outside the current consensus understanding of American Constitutionalism. But it's extremely strange that they should treat the established practice of their neighbor to the north as some kind of bizarre logical inconsistency or anarchistic madness, like--oh, I don't know, the wacky theories of lunatics like Copernicus and Darwin.

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