Creating Unconstitutional Laws

I have been asked in an email to discuss the proposition that knowingly writing legislation that is unconstitutional is immoral, and whether some sort of sanctions are in order against those who pass a bill later determined to be unconstitutional.

I do not have space in the course of this blog to give a complete account of the moral considerations relevant to constitutional interpretation. However, I think that the issue is complicated, and I hope to give some appreciation for the complications involved.

The Wrong of Unconstitutional Legislation

In a sense, an easy argument can be made that it is. Legislators take an oath to uphold a constitution. If they introduce legislation that violates the constitution, then they are violating their oath. That is a moral offense.

Furthermore, many Constitutional provisions are directed specifically at Congress. For example, the First Amendment reads, "Congress shall make no law respecting an establishment of religion . . ." If Congress makes a law respecting the establishment of religion, then they have made themselves criminals. However, these prohibitions do not come with punishments. As such, they are as effective as a law against drunk driving would be if the law also refused to punish those who were caught driving while drunk.

Yet, there are some complicating factors.

Breaking Promises/Laws

People are sometimes morally permitted, and even required, to break a promise or even to break the law.

Let us assume that I promise my wife that I will be there for a luncheon in which she will be giving an important speech to her company. She wants my moral support. However, on the way to the convention center I come across an accident - and I am well qualified to offer help to the victims. In this case, I am not only permitted to stop and help these people, I am obligated to do so -- even though doing so means breaking my promise to my wife.

As for violating the law, I have often used the example of a parent out fishing with a child when the child is stung by a bee. The child has an allergic reaction. The parent in order to get the child to the hospital, breaks the speed limit getting back into town. This is a permissible - perhaps obligatory - example of breaking the law.

So, we may argue that legislators may break their promise or break the law when something sufficiently important is at risk - such as the survival of the country, or large numbers of innocent lives. Furthermore, there is going to be disagreement over what counts as a sufficiently important risk.

What is Unconstitutional?

There are questions and even differences of opinion as to whether legislation actually violates the Constitution.

I find it interesting to note that even those who wrote the Constitution could not agree on what it said. Particularly interesting in this regard is the charter of a national bank. James Madison, who wrote the first draft of the Constitution and took meticulous notes during the Constitutional Convention, said that the government had no power to charter a bank and doing so would require a constitutional amendment. Alexander Hamilton and George Washington (the President of the Constitutional Convention) said that that Constitution did grant the government that authority. Hamilton and Washington won, and the United States government chartered a national bank for 20 years.

Twenty years later, when the Bank charter came up for renewal, James Madison - who had earlier argued that the bank was unconstitutional - renewed the charter. He did so, in part, because the bank had become an important part of the American economy and refusing to renew it would come at a heavy economic cost. Weighing economic cost against constitutional principles, Madison went with the economic arguments.

We could, perhaps, interpret the Constitution in such a way that it allows politicians to consider the economic and social effect of their decisions. After all, the Constitution was set up to 'promote the general welfare.' It might then be counted as absurd and irrational to be so devoted to a rule that one never allows it to be bent when the stakes are large enough. Rechartering the bank may be counted as one of those instances where it would have been foolish to follow the rules into economic collapse.

Our country discovered just how disruptive it would have been to withdraw the charter when Andrew Jackson did that very thing the next time the Bank charter came due - after another 20 years later. Jackson (my candidate for the most evil President in this country's history) did not base his arguments on national interest or constitutional issues. He has a personal feud with the President of the Bank and pulled the Charter as an act of personal spite - dumping the country into an economic recession.

This completely ignores the fact that many of the founding fathers held contradictory and hypocritical beliefs, most evident in their position on slavery. If slave owners can assert that “all men are created equal,” then we can only wonder at what other inconsistencies they might find acceptable.

Evolving Standards

Several parts of the Constitution contain rather vague language. For example, the First Amendment holds that the right to freedom of the press shall not be abridged. Yet, this would not include a right to report military secrets to an enemy with which this country is at war. The Constitution does not explicitly mention this exception - it is assumed to be a part of the concept of a 'right'.

The phrase that the right shall not be abridged suggests a theory that the right exists independent of the Constitution, and the Constitution is to be understood as respecting this natural and independent (moral) right. This means that, as we learn more about this natural right, our understanding of what the Constitution allows and prohibits might change over time.

On this interpretation, the Constitution itself is not changing - our understanding of it changes over time just as our understanding of the solar system changes over time. When we add new planets to the solar system, it is not the solar system that changed. It is our knowledge of it that changed. When we extend the right to freedom of the press into new areas, the right to the freedom of the press does not change. Instead, our understanding of its reach and its limits changes.

Other vague phrases can be found - particularly in the Bill of Rights. What counts as 'due process' or 'probable cause' or 'unreasonable searches and seizure' or 'cruel and unusual punishment' and the like?

The Principle of Charity

Another complicating factor here is what those in the Philosophy of Language calls 'the principle of charity.'

For any text, there is an infinite number of possible interpretations. Text, in fact, is merely a bunch of squiggles on some surface - a piece of paper, or a computer screen. It takes a social convention of assigning meaning those squiggles to have a language.

This means the reader has to form a theory of what the writer was trying to say. One of the principles that we must use in assigning meaning to a squiggle is the principle of charity, which says that the squiggles are to be interpreted as communicating as much truth as possible. If we have two competing interpretations - one in which the proposition is true, and another in which the proposition is false - and all else being equal - the principle of charity says to use the true interpretation.

Yet, different people have different ideas as to what is true. The principle of charity makes it inevitable that two people, reading the same document, and having only one meaning, are going to come up with two different interpretations of what that document says. Each person will see the document as supporting the interpreter's own version of 'truth'.

Negotiations between Legislatures and Courts

We must also consider the fact that our system of laws does not permit Congress to negotiate with the Supreme Court. The Legislature cannot hand a proposed law to the Supreme Court and say, "What do you think of this? Will you accept it?" The Supreme Court's answer is, "We only review active cases. Pass your law. Let some citizen challenge its constitutionality. Let it come before this court. Then, and only then, will we render a judgment."

So, the legislature is left to guess as to whether the Supreme Court will agree or disagree with their view. This is something like having a police officer looking over your shoulder. You ask him, "Will you arrest me if I do X?" He then answers, "Do X. Then, let us see if I arrest you or not."

Supreme Court Errors

A final point that I would like to consider is the possibility that the Supreme Court will make a mistake. It is quite clear that the Supreme Court is a political position. One of the powers of the Legislature is to pick Justices whose decision on a case is already pre-determined. Justices get selected because they are likely to vote one way as opposed to another on the various cases that he will judge.

So, a legislature that wishes to abolish the First Amendment can do so by appointing judges who, through their judicial philosophy, are likely to interpret the First Amendment narrowly, so that no law will ever be found in violation of it. We may ask, in this case, where the legislature approves or disapproves of a law, if this has anything at all to do with whether the law is Constitutional or not. It has everything to do with whether a previous legislature wanted a judicial system to claim that the law is Constitutional or not.

Conclusion

This post is simply a long-winded way of saying "I do not know," in answer to the original question. There is clearly some wrong involved in a legislature that passes laws that violate the Constitution. However, there is clearly some wrong in breaking the speed limit and creating a risk to the life and limb of others. Yet, sometimes these wrongs can be outweighed by greater concerns, such as getting one's child to the hospital, or saving the country from economic collapse (or military conquest).

Ultimately, I hold that the final duty to interpret and to defend the Constitution of the United States does not rest with the legislature, or the President, or the Supreme Court. That's our job. If we are not willing to defend the Constitution through our political efforts, then apparently we do not feel it is worth defending. If freedom of speech, freedom of religion, the right to a fair trial, and the right to be secure in our persons and papers from unreasonable searches and seizures disappears, it must be because we decided that these rights are not worth having. If we do not wish to preserve these rights, then there is no sense in saying that the legislature is wrong in taking them from us.

On the other hand, if we do think that the principles in the Constitution are worth defending, then the most important thing for us to do is to make sure that our families, friends co-workers, and countrymen understand why these principles are important, and that they join with us in our efforts to protect and defend these rights.

Which, as it turns out, is one of the principle reasons why I am sitting here writing this blog each and every night.

The job of defending these principles - to the degree that they are worth defending - is ours. We are being derelict in our duties to try to push this job onto others because we are too busy to be bothered.