American Democracy in Context. Joseph A. Pika

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СКАЧАТЬ (for instance, is a wiretap a search?). Similar difficulties extend to many of the most important clauses of the Constitution.

      Even seemingly straightforward clauses, such as the First Amendment command that Congress shall make no law abridging freedom of speech, can lead to widely divergent interpretations. What, exactly, does constitutionally protected speech entail? Is every verbal utterance protected (including libel, obscenity, false advertising, and verbal threats to assassinate the president or overthrow the government)? Is speech even limited to verbal utterances, or does the First Amendment also protect symbolic speech, such as burning an American flag? And if it protects symbolic speech, what does that entail? (For more on interpretations of protected speech, see Chapter 4.)

      Some argue that this ability of the Court to adjust its interpretation without the long and difficult process of constitutional amendment is a good thing. The ambiguity—and therefore the flexibility—of the Constitution allows phrases such as cruel and unusual punishment and unreasonable searches and seizures to evolve over time to comport with changing societal values and technological advances. This flexibility, they say, has helped the Constitution to endure. Others, however, fear that judges will exploit that flexibility and use it to “legislate from the bench.” Why, they ask, should unelected judges be allowed to pick which interpretation of ambiguous clauses is correct? Won’t their choices be based on their personal values and ideological predilections? Shouldn’t such ambiguities be resolved by legislators who are accountable to voters? Those who favor judicial interpretation say no because they fear the “tyranny of the majority” and believe judges will be more dispassionate guardians of constitutional principle and minority rights precisely because they are unelected (and thus independent). This debate will be discussed in more detail in Chapter 14.

      Coordinate Construction

      Members of all three branches of government take an oath to uphold the Constitution. Even though neither Congress nor the president has the power of judicial review, both end up interpreting the Constitution. Such interpretation by Congress and the president is known as coordinate construction.⁵⁰

      Whenever Congress passes any law, it must be mindful of constitutional limitations on its power. Consider, for example, the First Amendment command that Congress shall make no law abridging the freedom of speech. Congress must interpret that language before enacting a law dealing with speech. The Supreme Court, of course, may disagree with Congress’s interpretation and strike the law down, but since so few laws make their way to the Supreme Court, these initial determinations by Congress are important and can influence prevailing understandings of what constitutional clauses mean.

      Once laws are passed, the president is charged by Article II, Section 3 of the Constitution to take care that they are “faithfully executed.” However, Article II, Section 1, Clause 8 specifically directs presidents to “preserve, protect, and defend the Constitution of the United States.” Based on that language, could presidents refuse to execute laws they believe are unconstitutional? Some argue that these clauses require coordinate construction: The president must interpret the Constitution to make sure that it is upheld and faithfully executed.

      coordinate construction Refers to constitutional interpretation by Congress or the president. Proponents of coordinate construction believe that all three branches of government (not only the judiciary) have the power and duty to interpret the Constitution.

      In recent years, presidents have attempted to use signing statements to do just that. The use of presidential signing statements, issued by presidents when they sign legislation into law, dates back to President James Monroe in 1822. Traditionally, such statements were ceremonial in nature, used to celebrate the passage of the law. More recently, presidents such as Ronald Reagan used signing statements to clarify how they believed executive branch officials should interpret ambiguous parts of the law.

      Increasingly, however, signing statements have come to be used by presidents to identify portions of the law that they believe to be unconstitutional. Some laws passed by Congress are hundreds, even thousands, of pages long. The president cannot strike a particular line or clause from a bill before signing it. He must accept the full bill or use his veto power and reject the bill in its entirety. A signing statement allows the president to sign the bill but express his belief that one or more parts of it are unconstitutional. In using signing statements in such a way, a president would note the portion they believed to be constitutionally suspect but would enforce the law in its entirety unless the Supreme Court struck down that portion of the law.

      George W. Bush used signing statements in a more controversial manner. He routinely used signing statements to express his intent not to enforce certain provisions of the law he was signing. In one famous example, Bush signed with much fanfare the so-called McCain Amendment banning the use of torture by U.S. officials, but quietly issued a signing statement claiming the power to disregard the law when he, as commander in chief, deemed it necessary to do so. After the Boston Globe publicized Bush’s use of signing statements in an April 2006 article,⁵¹ a report by a Task Force of the American Bar Association concluded that Bush had already used signing statements to challenge more than 800 specific provisions of laws he had signed. In one signing statement alone, Bush raised 116 specific objections involving almost every part of the Consolidated Appropriations Act of 2005 that he had just signed.⁵² In short, Bush claimed the power to disobey portions of laws he had signed whenever he felt that those provisions conflicted with his interpretation of the Constitution. Critics claimed the president had exceeded his powers by imposing his own interpretation of the Constitution without waiting for a ruling from the courts.

      Shortly after taking office, Barack Obama instructed government officials not to enforce Bush’s signing statements unless they had clearance to do so from the attorney general. However, Obama indicated that he might use signing statements himself in some instances, and he did.⁵³ For example, in June 2009, President Obama issued a signing statement accompanying a war spending bill. In it, he said that he could ignore restrictions that Congress had placed on U.S. aid provided to the World Bank and International Monetary Fund. Some Democrats in Congress expressed concern that President Obama had used a tool that he and fellow Democrats had criticized President Bush for using.⁵⁴ However, Obama’s use of signing statements was less frequent and less controversial than Bush’s had been; by the end of his eight years in office, he had issued 37 signing statements challenging 114 specific provisions. In comparison, George W. Bush issued 161 signing statements challenging over 1,100 specific provisions during his eight years in office, and Donald Trump had—in only his first two years in office—issued 33 signing statements challenging 306 specific provisions.⁵⁵ For example, after signing the 2018 Defense Appropriations bill, Trump issued a signing statement challenging 52 provisions of the law.⁵⁶

      Consequences for Democracy

      Drawing on John Locke’s idea of the social contract, Americans embraced a written constitution to delineate the powers of government and the rights of its citizens. In contrast, Great Britain had an “unwritten” constitution that consisted of some written documents (such as the English Bill of Rights and Acts of Parliament) but also unwritten parliamentary conventions and royal prerogatives. Americans did not believe Britain’s more amorphous constitution had done enough to protect the rights of its citizens, in part because Parliament could alter the constitution through simple legislation. The fact that we have a written constitution embodying a republican form of government designed to protect individual liberty and to prevent concentrations of power in government is, in no small measure, a direct outgrowth of the history and influences discussed in this chapter.

      Today, written constitutions (largely based on the U.S. example) are the norm. Unwritten СКАЧАТЬ