Unethical Quote of the Week: Slate Editor Dahlia Lithwick

“[The G.O.P. nominee for the U.S. Senate, Christine] O’Donnell explained that “when I go to Washington, D.C., the litmus test by which I cast my vote for every piece of legislation that comes across my desk will be whether or not it is constitutional.” 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?”

Dahlia Lithwick, current Supreme Court commentator for Slate, during a three-way published exchange about what an unstable, unqualified kook Christine O’Donnell is.

I hope it is at least a little disturbing to Slate that their Supreme Court expert is apparently ignorant of where the basic responsibilities of obeying the Constitution lie. I hope it is equally disturbing to Stanford Law School, and all the stressed but hopeful students there who assume that their law degree will be worth more than a bucket of warm spit. If one is going to attack and ridicule a public figure for being “weird,” it is ethically necessary to restrict one’s attack to actual weirdness, rather than misinform one’s audience about the traditions and laws of the land and obligations of elected officials. If Dahlia Lithwick was intentionally making an over-reaching and unsupportable accusation against the would-be Delaware Senator, she was unfair and dishonest. If she really believes what she wrote, then she is so stunningly unqualified to write about the Supreme Court, or indeed any aspect of the U.S. Government that word “incompetence” hardly does her justice. In either case, her suggestion that it isn’t a U.S. Senator’s job to make every effort to ensure that the laws he or she votes for do not violate the bedrock principles of our Constitution is weird, not Christine O’Donnell’s assertion to the contrary.

Lithwick’s statement is the equivalent of saying that citizens have no obligation to make sure what they do is lawful, that they should just try something and let the judge’s and jury decide it its illegal or not…after all, that’s their “job.” To reach such an absurd position, Lithwick had to have absorbed a near lethal amount of the compliance rationalization, probably while working at her parents’ Reno law firm. Many lawyers, notably in the tax field, but many others, take the position that an act is only illegal if 1) you can be caught, and 2) a jury or judge convicts you. The technical term for these is “unethical lawyers.” Ethical lawyers, on the other hand, understand that the duty to obey the laws is endemic to citizenship, and that no citizen, lawyer or elected official should intentionally engage in an act that is contrary to the duly elected legislative body’s determination that such conduct is detrimental to the well-being of society and therefore prohibited as wrong.

According to Lithwick, the fact that a proposed law appears to infringe on free speech, the right to assemble, or other core rights  should not in any way figure in to a Senator’s vote; all that should matter, presumable, is whether the Senator thinks it will “work.”  Does the legislation seem to be a direct violation of the Commerce Clause? The Due Process Clause? “Hey, I’m just a Senator; what do I care? Let the Supreme Court sort it out!”

Now to be fair to Lithwick, this has been exactly the attitude of many Representatives and Senators  in the past, usually when they were in the process of disgracing themselves. One especially revolting example was when Sen. Bill Frist tried to get the Republican-led Senate to pass legislation interfering with the Florida courts’ resolution of the Terri Schiavo dispute, an odds-on candidate to be overturned by the Supreme Court if saner minds hadn’t prevailed. Some unconstitutional legislation has been passed, and some of that has managed to stay passed, but that doesn’t make the actions of Senators and Congressmen willingly and knowingly voting for laws that violate the Constitution any less an abuse of power, irresponsible, autocratic and incompetent.

Lithwick’s formula, in which legislators are bound to ignore the Constitutionality of the the laws they consider, would be a multilateral catastrophe. The Supreme Court would be flooded with cases involving Constitutional challenges to legislation. Our rights would erode, as the sheer volume of illicit lawmaking allowed increasing numbers of unconstitutional  laws to stand. There would be no reason to have legislators with even a rudimentary knowledge of the Constitution, since their opinion regarding Constitutionality was irrelevant to the law-making process. the U.S. Government would become a constantly escalating effort by “ends justify the means” advocates and zealots to use governmental power in ways antithetical to the ideals of American freedom, with the Supreme Court standing as the lone barricade between democracy and totalitarianism.

It is not “weird” for a U.S. Senator to make fealty to the Constitution a priority. In fact, it is mandated, and each U.S. Senator must swear to follow the Constitution as a condition of holding office. This is the Oath of the U.S. Senate, Dahlia. Do you notice anything?

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.

Here is what I notice: the duty to uphold the Constitution  is emphasized five ways before the oath even suggests any other duties. All Christine O’Donnell suggested in the statement Lithwick considers weird was that she intended to live up to the oath.

It is weird that someone with the warped vision of legislative duty that Lithwick has would be allowed to opine legal matters in a respectable publication; it is weird that a pundit would presume to tell her readers and a U.S. Senate candidate what the “job” of a Senator is without bothering to read the Senate’s Oath; and it is really weird that the two writers discussing the issue with Lithwick, Emily Bazelon and Hanna Rosin (Bazelon is a lawyer, Rosin is not), neither corrected nor admonished her, or exclaimed, “What? Are you deranged? Where did you get such a crazy idea? Of course Senators should vote against measures they believe are unconstitutional!”

It is not weird, however, that so many lawyers, activists, media commentators and others have such little respect for the Constitution of the United States.

It is frightening.

6 thoughts on “Unethical Quote of the Week: Slate Editor Dahlia Lithwick

  1. Well said, Jack. There is much I don’t like about Christine O’Donnell and I don’t want her as sanator… but in this particular case she is in the right and Delia Lithwick is in the wrong. Of course each senator has a responsibility to uphold the consistitution.

  2. The larger issue is how these over-the-top GOP women lure liberal media critics into making fools of themselves by ridiculous over-reaching. This is what made Palin so powerful, and it will elect O’Donnell if it continues, mark my words. These candidates have plenty of legitimate flaws to criticize, but when the media manufactures criticism, it simultaneously destroys the critic’s credibility and makes the candidate look like a victim of unfairness and bias—which she is.

  3. I mostly agree—in particular, considering the many politicians who see the local constitution as a nuisance, where it should be the fundament for their work.

    I would like to point to two aspects, however:

    1. A litmus test is basically a binary yes/no. The implication of the original statement by O’Donnell would be that she would resist anything incompatible with the constitution—and support everything compatible with it. This is hardly what she actually intended, but, if taken at face value, it would be a poor strategy indeed.

    2. While O’Donnell should consider the constitutionality of any laws she takes a position on, she should be careful not to make too great presumptions of interpretation—and it is probably a bad idea for each individual member of the legislative to individually take a position. Any concerns about constitutionality should be a matter of open discourse. This, in turn, could lead to the bill at hand being struck down, but it could also lead to a “not guilty” on that charge—and any further action, should the bill be passed, would indeed be a matter for the courts.

    (In a more condensed form: The constitutionality of a bill and its degree of worthiness in other regards are two separate issues, which should not be too intermingled.)

    • Really? I don’t agree. If a bill is unequivocally unconstitutional, it is per se unworthy. That’s what O’Donnell meant, and she is correct. That’s what Amendments are for. Personally, I think letting 18-year olds vote is a mistake. I think abortion will eventually be seen to be murder. Nonetheless, both are guaranteed by amendments, and a Senator may not honorably vote for measures that violate them. What else could the oath mean? The Constitution exists to make certain laws and measures, whatever their other virtues and utilities, impossible, if they violate core principles. Defending the Constitution cannot mean undermining that goal.

      If a measure is unconstitutional, and you believe its so, you are bound to vote against it. Those who don’t think it is a violation can vote for it, and if they vote for the bill despite believing it is unconstitutional, then they are violating their oaths.

  4. If we speak of “unequivocally unconstitutional” there is not much to discuss. The problem, however, is the cases of unclear constitutionality. Law-makers regularly make misjudgements in this area and the mere fact that a specialized court is needed (which does not always vote unanimously…) is a clear indication of the problems involved.

    We do now have one interesting situation: An individual member is convinced that a certain bill is unconstitutional, but the rest of the house disagrees. Should she now vote against the bill based on this belief—or should she go strictly by the merit of the bill, leaving the decision of constitutionality to the courts (again assuming sufficient merit that the bill passes)?

    To me, this is a tricky dilemma were I would not hazard a blanket answer without knowledge of the details of the individual case (in particular, as I am not aware of the exact legal regulations). In a similar dilemma, a policeman is confronted with a wanted man whom he considers innocent: Should he arrest him and let the courts decide—or let him go?

    “Personally, I think letting 18-year olds vote is a mistake.”

    Here you have my full agreement.

    • The issue isn’t whether there is consensus on the matter, but what the individual elected representative believes. (If the Senator doesn’t have sufficient knowledge of the Constitution and our laws to make an informed decision about THAT, then the Senator is unqualified for the job.) That’s why they have these things called “votes.” Courts make mistakes too (I’d say Roe v Wade was a huge one, and most Constitutional scholars who are honest about it agree), and the Oath means you don’t defer to them: defending the Constitution against enemies at home means, among others, elected officials and judges who would harm it. A Senator who votes for a measure he or she believes is unconstitutional in the assumption that a judge or 9 will fix the problem is abdicating his or her duty.

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