Rao WSJ Op-ed: Constitution Not Just for Courts

In an op-ed appearing in The Wall Street Journal, Professor Neomi Rao argues that the Supreme Court "does not maintain a monopoly on constitutional interpretation" and should not exercise its power in reviewing the constitutionality of legislation and executive branch action alone.

"The Constitution is not an abstraction to be consulted by lawyers and judges alone," Rao says. "House Republican efforts to reintroduce it to congressional deliberation will only make the document stronger and more relevant to a government of the people."

In earlier times, Rao says, most constitutional decision-making occurred in Congress and the White House. However, Rao believes that today Congress "has largely yielded the field of constitutional interpretation."

Rao quotes President Andrew Jackson, who said, "The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision."

The Constitution: Not Just for Courts, The Wall Street Journal, January 10, 2011. By Neomi Rao.

"So who, precisely, is supposed to protect the Constitution? Article VI provides that all of our elected and appointed officials in both federal and state government 'shall be bound by Oath or Affirmation, to support this Constitution.' The president takes a special oath to preserve, protect and defend the Constitution. These oaths reaffirm the constitutional language and structure that require each branch to take seriously the constraints of the Constitution.

"Contrary to popular belief, and the beliefs of some lawyer-congressmen, the Supreme Court does not maintain a monopoly on constitutional interpretation. The court has an important role to play in reviewing the constitutionality of legislation and executive branch action, of course. But it cannot and should not exercise this power alone.

"The political branches also have an obligation to support the Constitution by ensuring that their actions are within their constitutional authority. In my experience in the White House counsel's office, lawyers within the executive branch regularly analyzed the constitutionality of the president's actions. Moreover, agency lawyers analyze proposed legislation with an eye toward possible constitutional problems and report these to Congress."