Posted by: Cortillaen | 02/04/2011

Considerations of Constitutionality: For Courts Alone?

At the time of Obamacare’s passing, and of late thanks to Judge Vinson’s ruling, there has been an argument over the proper place for considering the constitutionality of laws.  While I addressed this somewhat in a previous post (and another fine post covers a historical view of the subject), I’d like to render this open challenge for anyone interested.  For you adherents of the “throw all the crap you can and see what sticks”, “push as hard as you can and do as much as the courts will permit” school of thought, especially those who claim Congress doesn’t need to worry about the constitutionality of the laws it passes because that is the courts’ job, please explain this:

“No Bill of Attainder or ex post facto Law shall be passed.” – US Constitution, Article 1, Section 9, Clause 3

Notice the emphasized segment.  It does not say such a law shall not be allowed to stand.  It says such a law shall not be passed in the first place.  In short, it explicitly commands Congress to consider the constitutionality of the law.  I also find it patently absurd to suggest that such an enjoinder was intended as an exception to congressional procedure rather than the rule.  By all means, though, prove me wrong.


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