A brief rant about the separation of powers

[tigertoy]

Reading over the headlines on Yahoo News, I particularly revolted by this story about how the House Republicans, on party lines, passed a bill barring the federal courts from considering challenges to the infamous words 'under God' in the Pledge of Allegiance.

I was also struck by the juxtaposition with this one, about how the Florida Supreme Court struck down the law shoved through by Jeb Bush barring Terri Schiavo's husband from letting his dead wife's body stop taking up a hospital bed.

I'm not going to rant on either of the specific issues these laws are directed at, even though they are both worthy of some ranting on their own. The real issue that gets my goat today is the contempt that legislators display for the concept of separation of powers. Once they think they are on the Morally Right side of an issue, they seem to forget that we have three branches of government in America for good reasons, and only a change in the Constitution can change the balance between them.

Congressmen for sure, and I assume Florida state legislators also, take an oath of office to uphold their respective Constitutions. At what point does passing legislation that deliberately undermines the Constitution become more than an issue for the voters to consider in the next election and rise to something for which they should be impeached or even charged with treason?

Comments

[billroper]

The new stadium is owned by the Illinois Stadium Authority, which is a government body, so they aren't subject to that law. See how simple it is? :)

As far as, for instance, the partial birth abortion ban, well, Congress went to substantial trouble to attempt to document in both the bill and its legislative history that this was a procedure that was never necessary in order to preserve the health of the mother, all in an attempt to persuade the Supreme Court that the law shouldn't be struck down. We will eventually find out whether or not they were successful.

The point that I'm making is that legislators don't generally pass laws with the expectation that the courts will strike them down, contrary to your impression. Sometimes, yes, but not generally. In fact, there was a strong expectation in many quarters that the Supreme Court would strike down the McCain-Feingold campaign finance reform bill based on the restrictions it places on free speech, particularly on political speech, which is one of the areas of free speech most deserving of protection.

As you may have noticed, they didn't strike it down. Surprise!

[tigertoy.livejournal.com]

I never claimed that most legislation, or even a significant percentage of legislation, is knowingly unconstitutional; I just claimed that they do it far more often than I like or than I think they should be able to get a pass on. More than once in any given legislator's career is clearly too often -- doubly so when it's the same issue they've already been smacked down on once.

If we're going to get into a debate about the merits of McCain-Feingold, we need to start a new string. Maybe I'll write an entry about my thoughts on the subject one of these fine days.