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Thursday, September 23, 2010

"How weird is that?"

In the course of an on-blog joint effort to "decode[]" Christine O'Donnell, Slate's senior editor and frequent commentator on things legal and Court-related, Dahlia Lithwick, writes:

 I have been fascinated by Christine O'Donnell's constitutional worldview since her debate with her opponent Chris Coons last week. 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? In 2003, O'Donnell said of the Supreme Court that "it's kind of like we have the nine people sitting there in Washington who have a constitutional monarchy and that is an abuse of the system." So I do wonder a little whether she's claiming that her view of what's constitutional trumps theirs. Not a lot of space for checks and balances in that reading. . . .

It somehow upsets the Constitution's system of "checks and balances" -- it's constitutionally "weird" -- for a legislator to take into account her view concerning a measure's constitutionality when deciding whether or not to vote for that bill?  (Note to first-year students looking ahead to Con Law:  It doesn't.  See, e.g., Art. VI.)

Posted by Rick Garnett on September 23, 2010 at 09:28 AM | Permalink


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I've read the quotes many times. I've read the long Volokh thread. The bottom line is that Lithwick may have assumed several things about the nature of O'Donnell's litmus test, and so on, but in the end, no amount of charity can salvage Lithwick's statement: she made a broad categorical statement that is, at face value, stupid.

If she'd confess error, I'd respect her for that. But she'll dig deeper, or change the topic, and hope that her defenders will gloss over it. If I shared her general legal or political worldview, I'd be embarassed that she's grown in prominence in some circles.

True, most of her critics this time around may be partisans, but one can be a good partisan lefty and recognize that this was inane. But on the other hand, it takes a strong dose of partisanship to defend Lithwick's actual statement, as opposed to rewriting it into something defensible, or attacking O'Donnell instead, etc.

Posted by: some skeptic | Sep 28, 2010 3:07:06 PM

Who's highly partisan?

All of the above; however, Lithwick more so.

Posted by: any | Sep 23, 2010 5:52:15 PM

Yeah, if one wants to be highly partisan. Come on, O'Donnell is a stupid conservative and Lithwick is Yale and Stanford educated liberal.

I wish I understood. Criticism is made of Lithwick criticizing O'Donnell, along with claim that O'Donnell is right. I suggest that what's being criticized and praised may be understood differently. You criticize me. Who's highly partisan: O'Donnell and Lithwick, Garnett, me, or you? Don't make me guess . . .

Posted by: Ani | Sep 23, 2010 3:41:41 PM

I think there's a less charitable reading of O'Donnell's view and a more charitable one of Lithwick's.

Yeah, if one wants to be highly partisan. Come on, O'Donnell is a stupid conservative and Lithwick is Yale and Stanford educated liberal.

Posted by: any | Sep 23, 2010 12:05:52 PM

For my part, I would hold the party advocating her own capacity to implement a vision of the Constitution -- in terms of votes, not just keyboarding -- to a higher standard. If she's not ready, the job can wait.

Posted by: Ani | Sep 23, 2010 11:31:15 AM

Ani, fair enough. To be clear, I am not claiming any certainty about what O'Donnell thinks about all this, or even defending her views (though, I admit, I am sympathetic to criticisms of judicial supremacy). I think it is appropriate, though, to hold Dahlia Lithwick to a higher standard, when it comes to talking about the Constitution's text and structure, than the one we apply to Christine O'Donnell. Lithwick knows, I suspect, that it is not, in fact, at all "weird" to think that it is not only "the court's job" to say what is constitutional. If (as I suspect) what worries Lithwick at the end of the day is the substance of the measures that O'Donnell would support (or oppose), she should say that. I expect O'Donnell to be partisan and opportunistic, but I expect Lithwick -- who is, of course, a smart and able writer -- to be less so.

Posted by: Rick Garnett | Sep 23, 2010 11:22:08 AM

Thanks. I agree that Lithwick's reaction was, at a minimum, poorly articulated, and ideological. But as to what O'Donnell was probably getting at, I think you'd have to concede that her objective probably wasn't a neutral plea that legislators have a objective to take the Constitution into account "now and then," decoupled from any set of beliefs about what the Constitution means to her.

She's the one claiming that the Court is a "constitutional monarchy" and engaged in abuse, not merely that Congress can play too; she added, incidentally, that "you’ll also notice, with all of these cases it’s a few people, a few people who oppose the masses." And the predicate for this whole discussion was her explanation that she was no longer relying on her youthful views re. the place of religion, but instead would be using the constitution as her litmus test. One might be forgiven for suspecting that this is like certain opportunistic conversions toward narrow views of the Commerce Clause. I think it's pretty obvious that she is disposed toward this position not because of her sense of what every member should do, but because of specific opposition to existing constitutional doctrine, and I think that's exactly what animates Lithwick's reply.

Posted by: Ani | Sep 23, 2010 11:06:50 AM

Ani, I am all for charitable readings (though I don't think Lithwick was making much effort to understand what O'Donnell was probably getting at). But, I don't think Lithwick's concern was simply about O'Donnell's "efficacy" as a legislator. She said it is "weird" to act in disregard of the (supposed) constitutional rule that it is "a court's job to determine whether or not something is, in fact, constitutional[.]" And, she suggested that it upsets "checks and balances" for a legislator to think that his or her view of the Constitution's meaning may take precedence, for that legislator, over the Court's past-expressed views. Sure, it might not be prudent for a legislator to vote for measures that the Court is likely, given its past decisions, to invalidate, but I tend to think that the prudent practice, now and then, of departmentalism serves, rather than undermines, the checks-and-balances features of our Constitution.

Posted by: Rick Garnett | Sep 23, 2010 10:38:21 AM

I think there's a less charitable reading of O'Donnell's view and a more charitable one of Lithwick's. As to the former, the concern may be that if one has an idiosyncratic constitutional view, and one that substantially expands the range of constitutional inquiries, it tends to undermine a legislator's efficacy -- I can see that from "*the* litmus test" and the suggestion that every piece of legislation is going to be the subject of this inquiry (concede, at least, that this is stronger than your "take into account . . . a measure's constitutionality"). As to the latter, her evident concern is that O'Donnell may ignore precedent in her reckoning . . . e.g., assuming that everything affecting a gun violates the Second Amendment, or everything promoting Christianity is okay under the First and mandated by the preamble.

Honestly, I don't think blog-on-blog constitutional commentary is going to be the most reflective.

Posted by: Ani | Sep 23, 2010 10:03:45 AM

Well, there's a different way of looking at her comments: She will vote in favor of anything so long as it is constitutional (in her view), exercising no sub-constitutional policy judgment. So does that mean she will vote for, say, an across-the-board increase in income tax (which is unquestionably constitutional under Art. I and the 16th Amendment)? And if not, will she explain her vote by arguing that this tax increase is unconstitutional? *That* would be weird--or at least make her constitutional vision a weird one.

Posted by: Howard Wasserman | Sep 23, 2010 9:57:37 AM

And what part of the Constitution does she think "provide[s] for" her strange believe that it is "a court's job to determine whether or not something is, in fact, constitutional?"? I believe in judicial review, but there are no court-specific provisions of the Constitution that authorize judicial review. It's variously inferred from the supremacy clause, constitutional structure, etc.

Posted by: WPB | Sep 23, 2010 9:39:26 AM

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