“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.