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Strikingly Unconstitutional

September 16, 2013
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Whenever the United States Supreme Court decides that a law enacted by Congress is unconstitutional, supporters of the law rail against “unelected judges” exercising a power not found in the Constitution.  The reaction to the recent decision involving the “Defense of Marriage Act” is typical, showing that most citizens don’t understand why or how judges can, in the popular phrase, “strike down” a law duly enacted by their representatives.  As Constitution Day approaches, a better understanding of that process is in order.

Under the United States Constitution, the Congress has the power to enact laws and the President the duty to enforce them.  But as anyone who has ever contested a traffic citation knows, only courts have the power to decide if someone accused of violating a law has actually done so.  That is true of every law enacted by Congress and signed by the President.  Although the President, the Attorney General and certain government agencies can accuse citizens of violating an act of Congress, if the accused disagrees a court must ultimately decide between the enforcement authorities and the accused.

8775603_lOrdinarily, no constitutional issues arise when courts are called upon to enforce a law of Congress.  But suppose that a court were asked to determine that someone has violated a law duly enacted by Congress, over a veto, making it a crime to criticize a member of Congress.  Such a law would surely be in violation of the constitutional prohibition on laws restricting freedom of speech.  What are judges to do if asked to find that someone has violated such a law?  After all, judges have all taken oaths to support the Constitution.  On the other hand, the members of Congress who enacted the law took their own oaths to support the Constitution.

Since the earliest days of the United States, judges have concluded that they violate the oaths of their offices if they enforce laws they believe were enacted in violation of some constitutional provision.  That principle was first articulated in 1803 in the famous case of Marbury v. Madison.  If a case gets to the Supreme Court and a justice believes that a law before the Court was enacted in violation of the Constitution, he or she has taken an oath not to enforce it.  If a majority of the Court has that view, the law will not be enforced.

Courts have no power to make pronouncements about laws in the abstract, no matter how obviously unconstitutional.  They only make decisions in cases before them in which the constitionality of a law is raised by one of the parties.  If a majority of the justices of the Supreme Court decides that a law was enacted in violation of the Constitution, they don’t really “strike it down” but simply refuse to enforce it based on their oath to uphold the Constitution.  The law literally remains “on the books” until repealed.  In the meantime, all other courts, being bound to follow the rulings of the Supreme Court, cannot enforce the law.  It is as simple as that.

When people claim that judges have no right striking down duly enacted laws, they should be required to answer Chief Justice Marshall’s rhetorical question in Marbury v. Madison:  “Why does a Judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government?  If it is closed upon him, and cannot be inspected by him?”

Happy Constitution Day!

Donald E. Knebel is a partner in Barnes & Thornburg LLP, resident in the Indianapolis, Indiana office. He is a member of the firm’s Intellectual Property Law Department. Mr. Knebel serves as adjunct professor and senior advisor to the Center for Intellectual Property Research at the Indiana University Maurer School of Law. He frequently posts his observations here at Civic Blog. The views expressed do not necessarily reflect the views of Barnes & Thornburg LLP or the IU Maurer School of Law.