The View From LL2

Over at the Volokh Conspiracy, Prof. Randy Barnett offers a pretty sad assessment of “today’s constitutional law”:

[I]f the Supreme Court adopts a “presumption of constitutionality” by which it defers to the Congress’s judgment of the constitutionality of its actions–as it has and as “judicial conservatives” urge–and the Congress adopts [the] view that “unconstitutionality” means whatever the Supreme Court says, then NO ONE EVER evaluates whether a[n] act of Congress is or is not authorized by the Constitution. A pretty neat trick–and a pretty accurate description of today’s constitutional law.

With all due respect to Professor Barnett, I think this is not the state of today’s constitutional law.  First, I think Congress does more than assuming a deferential Supreme Court will rubber stamp all of its legislation.  Even if the Commerce Clause doesn’t give many legislators reason for pause, there are still other constitutional provisions that Congress worries about.  (Witness, for example, the constitutional hubub over the attempt to give D.C. a vote in the House.)

Second, even though Prof. Barnett may be frustrated that the Commerce Clause isn’t invoked by the Supreme Court more often, a presumption of constitutionality is not absolute.  The Supreme Court obviously does strike down certain congressional legislation on constitutional grounds.  Indeed, important pieces of legislation (like the Patriot Act and the Defense of Marriage Act) have come under constitutional fire, and cases like Morrison and Lopez suggest that the Court will step in when Congress goes too far.  Prof. Barnett shouldn’t lose sight of that.  (Frankly, I’m hoping his views aren’t simply skewed by being on the losing end of Gonzales v. Raich, which he argued before the Court.)

-Michael

Update: Prof. Barnett has reaffirmed this understanding of constitutional law, this time with even more ALL CAPS and bold text!

This point is so important that I should repeat it. [W]hen it comes to the enumerated powers of Congress, the Supreme Court should defer to Congress’s assessment of constitutionality (because of judicial restraint); and Congress should defer to the Supreme Court’s assessment of constitutionality (because “the Supreme Court is the ultimate authority on the Constitution”). So NO ONE SHOULD ACTUALLY INTERPRET THE CONSTITUTION! This is current American constitutional “law” in nutshell.