15 June 2020

A Constitutional Court

Disclaimer: The author of this post is not, and does not claim to be, a legal professional of any sort.  All he is is an academic with an interest in the history of constitutions who happens to be married to a lawyer.  Said lawyer disavows any prior knowledge of the contents of this post.

Going to get serious now...

I've long believed that if I had to pick one single thing that would do the most to improve the government of this country it would be to establish a Constitutional Court.  Such a court would have original and exclusive jurisdiction in cases involving violations of constitutional rights, settling disputes between the executive and legislative branches of the federal government, and cases of professional misconduct at the highest level of the executive branch. 

Why is such a court needed?  First, rights issues now have to wind their way through lower courts, appeals courts, and often the Supreme Court before a final decision is reached.  In that time, in the case of final adjudication in favor of the plaintiff, the injured party--and those in a similar situation--can continue to suffer the violation of their rights and quite possibly long-term effects of that violation while the case is making its way up the ladder.  This is no way to deal with such a fundamental element of our being as a nation.  Justice delayed is justice denied.  Similarly, issues involving elections and voting rights--as we have seen in recent years--can be decided only after the election in question had taken place.  Invalidating and repeating an election or only changing the rules after an irregular election is again no way to deal with such a fundamental part of democracy. 

We have also seen in recent months a deadlock between the executive and legislative branches, with each citing the law on their side, on the issue of congressional subpoenas of high administration officials.  Not only does this give license to official wrongdoing, it presents a fundamental constitutional crisis: How do we resolve conflicts between the branches, especially when dealing with potential misconduct or unconstitutional acts?  Right now, it appears the answer is "we don't know."  I believe cases regarding congressional subpoenas of administration officials are again winding their way through the courts, but such important issues need more timely answers than the current system can provide.

In cases of misconduct at the highest level, our constitution leaves us short-handed indeed.  There is one remedy, impeachment, for any wrongdoing.  "Does this amount to an impeachable offense?" still rings in our ears.  Look at what this says: an offense has, in fact, been committed; the issue is only whether it's severe enough to merit the only punishment the constitution provides.  Does that make any sense?  We've got a fly buzzing around our heads but we only have a bazooka to address the problem.  If there were legislation to address executive branch misbehavior with lesser penalties, exempt from executive immunity, a Constitutional Court can try such cases without what becomes and endless round of appeals regarding privilege and jurisdiction.  Such a court would also deal with the troublesome issue of standing.  A number of state attorneys general filed a suit against the president for violating the emoluments clause of the constitution.  It would have been an interesting and precedent-setting case, but the original court of jurisdiction ruled that the attorneys general did not have standing, i.e., the were not qualified to bring such a suit.  Well then, who is?  The constitution provides no guidance on who can bring a case against the president--or any other high federal office holder--for violating the constitution, short of impeachment and removal by congress.

Our constitution is handicapped in this regard because of its early appearance in the history of modern republics.  Nearly all constitutions written later, or rewritten later, provide for a Constitutional Court or its equivalent.  Indeed, in France laws passed by the legislature must be reviewed by the Council of State before they are enacted, to assure they don't violate the French constitution.  The drafters of our constitution either did not foresee, or did not want to deal with, conflicts between the federal branches or unconstitutional conduct.  Nevertheless, this lacuna in the constitution appeared early in the famous Marbury vs. Madison under Jefferson's presidency.  In the Supreme Court's ruling on the case, John  Marshall, the chief justice, famously stated that it was emphatically the prerogative of the Supreme Court to determine what the law is.  That served as the foundation of what we have of a Constitutional Court, the doctrine of judicial review.  Unfortunately, the way this was done meant that constitutional cases would have to follow the usual rules of standing, original jurisdiction and appeal, and procedure that all trials follow, which results in the lengthy, cumbersome, and frequently inconclusive procedure we now have.  Likewise, constitutional cases must share the court's time with all the other cases before it, slowing imperative adjudication.  A Constitutional Court with original jurisdiction and its own rules of procedure would alleviate these problems.

So how would such a court be constituted, especially as it would need to be kept as far from political influence as possible.  One way I can think of would be for the members of the Constitutional Court to be appointed by a 2/3 majority of the Supreme Court, and that there be a statutory requirement for holding a seat such as 10 years service as a professor of constitutional law in an accredited law school.

I am convinced that if we do not take such an essential institutional reform, the federal government will only become further paralyzed and democracy itself will be at risk.


  1. Impeachment is hamstrung by politics, it is ineffective. The honor of doing right and good, is overrun by partisan loyalty in a system that rewards loyalty over competence.

  2. We may have reached the point where divine intervention is needed. I was hopeful, these past the months, that Darwinian actions would remedy the situation, but alas.