“Anything we’re doing that’s unconstitutional will be thrown out in court.”
—-Rep. Barney Frank (D-Mass.), expressing his disdain for a new House rule that will come in with the new Republican majority, requiring every bill to cite specific constitutional authority.
Similar sentiments expressed by others:
- “No harm, no foul!”
- “Hey, if we get away with it, we’re not criminals, right?”
- “Look, it’s worth a shot: if we sneak it past the inspectors, we’re home fee, and if they catch us, what’s the worst they can do?
- “Constitution? What Constitution?”
The fact is, as Rep. Frank, a smart and learned man, well knows, courts do not automatically overturn unconstitutional laws. Sometimes nobody objects, so the issue doesn’t get to court. Sometimes a law will stand for years before it gets to court. Sometimes a judge will make a mistake, or intentionally allow an unconstitutional law to stand, because, like Barney, he thinks he’s smarter than James Madison, George Mason and all those other old, dead guys.
But members of the House of Representatives, like Barney Frank, swear an oath to uphold and defend the Constitution:
“I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.”
Note that the oath does not say that the officeholder swears to try slip by the courts and the public any measure he or her deems in the best interest of the public regardless of whether it is constitutional or not.
Frank’s delusion seems to be widespread. Back in September, another unethical quote was featured here, from the keyboard of Slate editor Dahlia Lithwick, who mocked the eminently mockworthy Christine O’Donnell for saying that if elected to the U.S. Senate, she would only vote for constitutional measures . Lithwick wrote: “
“How weird is that, I thought. Isn’t it a 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?”
What is really weird—and irresponsible, and quite possibly sinister— is so many supposedly educated members of the media, as well as elected officials who have taken an oath to proactively protect the Constitution, believing that it is proper for legislators to ignore whether a bill is constitutional or not.
Speaker-to-be John Boehner’s edict that the Constitution be read aloud to the House of Representatives, together with his new requirement that bills have specific constitutional authority, is being ridiculed by—surprise!—much of the media and Democratic legislators. They should check that Oath of Office and reconsider who is ridiculous. It is difficult to support and protect something you don’t respect.
Ethics Alarms 
Jack, I am glad to say that I proudly stand behind everything you say in this column, and I mean EVERYTHING. Thank you for bringing it to our attention.
Well, I don’t agree about the reading-aloud part. Representatives don’t even have to be present on the floor. Those who are both on the floor and conscientious enought to listen don’t need the reminder. I predict that the House just gave itself about 45 more minutes for multi-tasking, and little else.
If they read fast.
Otherwise, my only contribution to the discussion is the following comment by Henry Kissinger, quoted in the Washington Post in 1973. In fairness, Henry was not holding an elective or legislative office at the time, although Cabinet members are required to take the same oath.
“The illegal we do right away; the unconstitutional takes a little longer.”
True enough about those who need to hear it may not be there, but eventually, if repeated enough, frequently enough, it can have an impact even on those who start out with deaf ears. There was a reason why on every school day, for those of us brought up in America as it used to be, we recited the Pledge of Allegiance every day. Somehow, at some subliminal level, it was a reminder of what our nation stood for (however imperfectly implemented). It was a unifying act, and even the juvenile delinquents in the junior high and high schools carried something with them into adulthood that represented a core value. Just as the clothes you wear influence how you will behave, the thoughts you surround yourself with, and the people who become your associates will determine your own personal character. It’s time to return to something like that, and this reading of the US Constitution is a good start. I, for one, would be all for that happening at the beginning of each resumption of Congress after recesses, annually, and on other appropriate occasions, especially prior to the State of the Union, so that the President himself can be reminded of what he is supposed to uphold.
Should we read all the amendments as well? How about the case law interpretting what those words mean?
I know Congressmen don’t like to read, but yes: they should read all the amendments, and should at least understand the key opinions interpreting them.
Yeah, of course the reading of the Constitution is symbolic,but I would also argue that any member who wants to show that he has proper respect for the establishing document of the government damn well can take 45 minute to symbolically demonstrate his or her respect. If the GOP members are smart (don’t get me started), Boehner should have 100% attendance from them, and after that, commenting in the future that the Democratic members chose to ignore the reading of the document they so airily dismiss as someone else’s concern is good politics, fair, appropriate, and illuminating.
Perhaps they should start every day with a selected passage from the Constitution? Kind of like the bible in church? “Today’s reading is from Paragraph 3 line 1: …..
Yeeahh!
Jack, I’m SO glad you wrote this commentary.
I was really angry when I heard Barney Frank say that on the news and then immediately my anger was redoubled at how the press coverage didn’t even bat an eye at it–the story was about how reading the Constitution was such a bad idea.
–Dwayne
I’m with you on this one about 98% of the way. Congress should consider the constitution, it’s amendments, and it’s interpretations by the court before making any law. If something is borderline, I’m okay with the law being passed, but that’s just boundary cases. Wilfully ignoring the constitution is not cool.