TRACHMAN'S RESPONSE

Will Trachman was kind enough to respond to my criticisms of his Findlaw piece. Here is his reply, which I have edited ever-so-slightly:

I want to thank Mr. Marston for thoroughly reading my piece, as well as his insightful comments on the substance of the section 5 debate. I think Mr. Marston has done an excellent job bringing to light some of the tougher issues in the debate, and will definitely aid opponents of my point of view in articulating their positions. . . .

Mr. Marston writes:

>>If the main reason for withholding power from Congress is that Congress might make laws that you don't like, then the logical question is, Will the Court do any better?<<

This sentence demonstrates Mr. Marston’s fundamental misunderstanding of the section 5 problem. The Court doesn’t make laws. It’s not supposed to. Congress is supposed to make laws, and the courts are supposed to make sure that those laws are constitutional. There is no dilemma between either Congress or the courts making laws.

The real issue, of course, is whether a ruling by the Court is any better than Congress enacting a statute that purports to enforce the Fourteenth Amendment. Note the importance of constraining Congress’s power to make the law. As I note in my article, Congress has made full use of its Article I powers, like the Commerce Clause, to enact legislation. But Congress faces limits. The Rehnquist Court has limited the Commerce power in Lopez and Morrison, and has protected state legislatures from being commandeered by Congress (in Printz and New York v. U.S.). To reinstate plenary power in Congress, where they are able to both interpret the Constitution and then legislate pursuant to it, is to invite abuse.

Let me quote from a law professor much more distinguished than myself, and, incidentally, a professor considered far to the left of the Rehnquist Court).

Michael Dorf (Columbia Law School Professor): “Virtually any law, indeed, any human action, can, on some rational understanding, be seen to deprive someone of life, liberty, property, or equality; thus, a congressional power to enforce Congress’s own definition of the substantive provisions of the Fourteenth Amendment could well become a de facto plenary congressional power.”

This doesn’t sound dangerous? I disagree.

>>If Congress can define Section 5, however, and does so poorly -- by outlawing affirmative action, say -- then members of Congress can be held accountable at the polls.<<

This is actually a decent argument, and offered by many noted academics, perhaps most prominently Laurence Tribe of Harvard Law School. Without intending to sound presumptuous, I think Professor Tribe and Mr. Marston need to re-think their position.

The first problem with the argument is that it ignores the proper means of amending the Constitution. If Congress, for instance, wants to change the substance of the Fourteenth Amendment (by redefining § 1’s protections on equal protection, due process, and privileges or immunities) it may do so, under this theory, by mustering a mere majority of both houses of Congress. This should not be so. The substantive protections of the Constitution should not be altered based on mere majorities. Article 5 of the Constitution requires not only that 2/3 of each house of Congress agree to alter the Constitution, but also that ¾ of the states agree to its amendment. Surely, Mr. Marston might object to an argument contending that the Federal Marriage Amendment to the Constitution need only pass by a bare majority in each house of Congress, followed by these legislators being “held accountable” at the polls. Amendments to the Constitution are, and have always been, different than mere legislation.

The second problem is that the Constitution’s meaning might change all too frequently. One day, bans on affirmative action may be necessary to enforce the amendment, or perhaps prohibitions on states regulating assault weapons (remember – any of the first eight amendments can be “enforced,” since they are incorporated against the states by the fourteenth amendment’s due process clause). The next day, these laws might not be necessary for enforcing the amendments. States will obviously face confusion when an entire genre of laws are in effect when one party controls Congress, but where they are not when another party is in control of Congress.

>>I think that the battle has been fought to a draw here<<

Not by a long shot. The battle here is between plenary congressional power and good governance. One branch of the government should not be permitted to exercise full interpretative power over the Constitution while at the same time legislating pursuant to it. Suppose, for instance, that Congress sought to “enforce” the equal protection clause by mandating that states actively discriminate against African Americans on the basis of their race. May Congress interpret § 1 of the Fourteenth Amendment in such a manner as to defy the express constitutional rulings of the Supreme Court? I would hope not. For Mr. Marston, however, this remains an open question.