Sunday, January 04, 2009

An Honest-to-God Constitutional Crisis!

Man, Rod Blagojevich is a Dick. Determined to go down swinging, he appoints Roland Burris, whose only weakness is sympathizing with that Dick Rod Blagojevich. And suddenly, though no one wants to say it, we have a Constitutional Crisis on our hands. I'm no lawyer, but here's my thinking.

The two major points seem to be:
  1. the Constitution, which states that each house of Congress is "the Judge of the Elections, Returns, and Qualifications of its own members". Great, easy enough. The Senate gets to decide everything. Except nope, because the second major point...
  2. Powell v. McCormack says that Congress only gets to test the Qualifications set in the Constitution (older than such and such age, citizen of X state for at least Y months, etc.), and can't set the barbarous Qualification of "you can't have been kicked out of Congress before". Meh, not sure I agree with the decision, but hey, it's the Law of the Land.
Almost all of the analyses I've seen have been trying to fit the current conditions to the contours of Powell v. McCormack. But what people haven't been mentioning is "Political Question", the doctrine by which the Supreme Court can choose not to decide a case because it has no right to interfere. Somewhere, that clause has to give a house in Congress a right to act in some way to exclude members (or else it wouldn't have been included). And when it exercises that right, it is "the Judge".

That's scary. Because that means that once it figures out exactly the limits of that power, within that realm its power is absolute. And can't be checked. And can be wielded for political purposes. Could someone explain to me why a majority of the Senate couldn't get together and say to prospective Senators (presumably of the other party): "I'm sorry, we don't believe your birth certificate. We think you're 29, and therefore unable to serve in this Senate; better luck never."?

We like Checks and Balances. But it seems here that the Constitution has said "there is an area here where each House is the final authority". I think that's the heart of the issue. At some point, the Supreme Court has to let each House make its own mistakes, and let them card members-elect and then act like dicks, and then have the system come crumbling down with a new amendment that will create an alternative system that has its own pitfalls. Oh Constitutional Crisis, you're so fun to hypothesize about!