Pitter-Pander Of Senatorial Feet

Dahlia Lithwick and Richard Schragger have a very good piece up at Slate about unconstitutional laws being passed through congress .

Last week, we watched as several senators voted for a bill redefining the treatment, detention, and trials of enemy combatants, even as they expressed doubts as to its constitutionality. The bill setting up military tribunals for enemy combatants, among other constitutional infirmities, contains a provision stripping courts of their power to review the constitutionality of the detentions. This provision, which suspends the writ of habeas corpus for current and future detainees, was contested by a number of senators, but the amendment that sought to excise it from the final bill failed by a vote of 51-49.

Before that amendment was rejected, Sen. Arlen Specter, R-Pa., chairman of the Senate judiciary committee, announced, “I’m not going to support a bill that’s blatantly unconstitutional … that suspends a right that goes back to [the Magna Carta in] 1215.” He added, “I’d be willing, in the interest of party loyalty, to turn the clock back 500 years, but 800 years goes too far.”

Specter’s justification for then voting for a bill he deemed unconstitutional? “Congress could have done it right and didn’t, but the next line of defense is the court, and I think the court will clean it up.”

The piece is both full of information and a thoughtful analysis of the current problems with the democratic process. The elected officials are more interested in keeping and maintaining their positions of power than is using that power appropriately.

This however begs a question. If the elected officials keep stacking the supreme court with justices acceptable to the conservative base, might not this tactic of judicial ping-pong eventually backfire? If George W. Bush manages to place another justice into the Supreme Court and uses this choice to feed the right-wing conservative base (for example during a 2008 presidential election year), might not the court start accepting some of these less than constitutional laws? Could habeas corpus just be a thing of the past, like the knights of the round table, chivalry or honorable public servants? Do lawmakers really care about law or are they just interested in keeping their day job (serving themselves the public)?

My favourite quote from the piece is

That’s why lawmakers who think that legislation banning flag-burning violates the First Amendment regularly trot it out anyhow. It is an easy way to mollify voters, while letting some other branch grapple with what the Constitution actually requires. As an added bonus, lawmakers then can blame the courts for usurping the will of the electorate, turning an ordinary political pander into an Olympics-worthy double-pander.

While I have never actually seen the double-pander during the Olympics, I’m sure Mark Foley could probably do it. Dennis Hastert and Tom Delay are also experts I’m sure.

But pitter-pander aside, doesn’t this mean the system is broken? If you have government officials wasting time and money simply to score points with a disinterested electorate, should you be researching a different system? Disinterested voters want to know.

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