Washington Post blogger Jennifer Rubin says that Robert P. George was asking the Republican candidates “to take a constitutional lark that would have been a serious problem in a general-election setting” and advancing a “pet theory.”
Professor George was asking the candidates whether Roe v. Wade precludes Congress from acting on a contrary understanding of the Constitution. Rubin attempts to cast doubt on the precedents usually advanced for the view that Congress sometimes has a duty to act on its independent constitutional judgments.
“Now, Lincoln was fighting to save the Union (and hence violated habeas corpus restrictions) and was, well, Lincoln. Moreover, it’s not clear that he was exhorting the elected branches not to follow the Supreme Court rulings; after all, the amendment process does give the states (and thereby the people) the final say.”
This is mistaken. In the first place, asserting a right to regard Dred Scott as binding only on the parties to the litigation manifestly did not serve the cause of saving the Union: Lincoln’s willingness to stand on principle on this issue was, after all, a precipitating factor in the South’s secession. And Lincoln certainly did have the executive branch disregard Dred Scott when its litigants were not involved, reversing agency decisions in passport and patent cases so as not to be consistent with its principles. Does Rubin really wish to maintain that everyone should have treated Dred Scott as a sound reading of the Constitution until the Thirteenth and Fourteenth Amendments had been ratified? That the Confederates were right and Lincoln wrong about the constitutional status of slavery?
Rubin continues: “But of course, for 200-plus years we’ve lived with the rule of law, allowed the court to interpret the Constitution and avoided constant constitutional crises. Richard Nixon didn’t ignore the Supreme Court ruling on the tapes. Dwight D. Eisenhower didn’t ignore Brown v. Board of Education. And certainly George and others would have a fit if President Obama ignored a ruling holding ObamaCare unconstitutional.”
This is off point. While we have lived with the rule of law, allowed the court to interpret the Constitution, and avoided constant constitutional crises — and George’s question did not imply any desire to change these happy circumstances — we have certainly not taken the view for 200 years that the Court’s interpretation of the Constitution is binding on the other branches. (Side note: How does Rubin know what George’s views on Obamacare’s constitutionality are? Did she ask him? Has he written something on the topic with which I’m unfamiliar?) George’s view is that the Supreme Court itself violates the rule of law when it disobeys the Constitution. Does Rubin disagree with him, and with Lincoln?
Note also that George was not recommending a strategy of having Congress pass a sweeping anti-abortion law, as some commentary has had it. He was trying to get the candidates to explain their constitutional views on the question of how much leeway the other branches have in protecting the unborn given the Court’s rulings.
As I mentioned yesterday: When Congress passed the ban on partial-birth abortion and President Bush signed it, the Supreme Court had ruled bans unconstitutional. It is hard to see how a Congress and a president who share Rubin’s defective understanding of the Court’s sovereignty over the Constitution could have done any such thing. But the earth did not split in two when it happened.