Posted: January 8, 2007
he scene: Washington, D.C., hearings before the Committee on the Judiciary of the House of Representatives, on the Defense of Marriage Act, May 15, 1996. We were seeking to shore up the authority of the states to refuse to honor same-sex marriage. I was testifying in favor of the bill, making the case. The courts in Hawaii had recently installed same-sex marriage, and there was a serious question as to whether the Full Faith and Credit Clause of the Constitution would require the states to honor such marriages just as they would be obliged to honor most other marriages from other states. What I was trying to do, more fundamentally, was give guidance to the courts when they came to confront that question. We were seeking, that is, to remind the political class that the political branches—the legislative and the executive—were as duty-bound as the courts to reach judgments on the constitutionality of those measures that came under their purview.
To no one's surprise, Congressman Barney Frank of Massachusetts was opposed to the Defense of Marriage Act. But apart from his aversion to the policy, he also insisted that the proposed Act was unconstitutional. And to that we replied: Precisely, you make our very point. As a member of Congress, you would be obliged to go beyond the question of whether the proposal is desirable as policy; you would be obliged to consider also whether it is compatible with the Constitution. That logic of the Constitution was so firmly in place that it could slip past our notice. Even Congressman Frank, one of the cleverest of men, had not seen that he was backing into that logic even when he thought he was resisting it in our bill. Yet the same could be said these days for a large class of lawyers and judges. Within that class, no case has had a higher standing than Marbury v. Madison (1803), and yet no case seems to be less closely read or understood. As the legend has taken hold, this case established the authority of the Supreme Court to hold an act of Congress unconstitutional, and beyond that, the case has been taken to establish the courts as the sole, exclusive authority in interpreting the Constitution. And yet nowhere in the body of Marbury v. Madison did Chief Justice Marshall ever say that the Court had the final word on these matters, or that the judges would have the sole, exclusive standing in pronouncing on these questions. Indeed that latter claim was simply inconsistent with the root logic of his position. If one pays close attention to that logic, it would be clear that the obligation of judges to consider the constitutionality of the laws that come before them is an obligation that would exist even if Marbury v. Madison had never arisen and John Marshall had said not a word on the subject.
Still, the word he did choose to say in that case offered a teaching, and the core of the teaching might be put in this way: in any system of law there must be a logical layering, a distinction between ordinary law and the deeper law that provides the structure in which laws are made. The German term may be more telling: Grundgesetz, the law that establishes the ground of the law; or in the rendering more familiar to us, the "fundamental law" or the "basic law." If we ask, for example, the simple question of how law is made in the United States, most students can tell us that a bill must be passed by the two houses of Congress and signed by the executive. But why is that the case? Because the terms are spelled out in the "fundamental law" of the Constitution. The basic law is the law that tells us just how we make "laws."
When the matter is arranged in these terms, it becomes clear that the fundamental law takes a logical precedence over any ordinary statute. Marshall drew out those implications quite plainly in Marbury when he observed that if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case.... If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply.
This logic is nowhere set forth in the Constitution, but it is the logic that would underlie any regime that could be called a "constitutional order" or a "government of law." The highest judicial task would involve then a strenuous, probing effort to understand the bearing of the Constitution on the case at hand. But in the logic of the matter, Marshall was not claiming anything more for the judges than could be claimed, with as much force, for any other officer under the government. If a president were faced, say, with a congressional act that provided conscription into the military for blacks but not whites, would he be obliged to consider only questions of "utility"—whether the measure would "work"? Or would he be obliged, no less than judges, to consider whether that measure was compatible with the deeper principles of the "basic law"?
Making Constitutional Judgments
That is the understanding that makes it inescapable, even today, for presidents to bear the responsibility of acting as interpreters of the Constitution. But though the logic may be inescapable, George W. Bush has managed to stage one of the most remarkable patterns, even in the modern era, of shying away from that responsibility. True, certain "signing statements" have been appended by the president to some congressional acts, for the sake of guarding his constitutional powers as commander in chief. But Mr. Bush has steadily avoided any suggestion that he is obliged to make constitutional judgments as he deals with the Congress or the courts on any matter apart from the powers of the president in time of war. The president's hesitation in this respect may merely reflect the tendency that has set in, even among the most conservative lawyers, to accept the supremacy of the Supreme Court in fixing the meaning of the Constitution.
But as Russell Hittinger has pointed out, Lincoln could not have raised his hand and taken the oath of office on March 4, 1861, if the decisions of the Supreme Court had the same standing as the Constitution itself. Lincoln could not have sworn to uphold the Constitution if the new "rights," articulated in Dred Scott v. Sanford (1857), had a claim to be respected as though they were woven into the text of the Constitution. In our own day, even Republican lawyers, nestled in the legal establishment, have forgotten the precise lessons that Lincoln taught here, or they no longer credit that teaching. And yet, that teaching was irresistible.
The question posed in the crisis of his time was, How would one respect the decisions of the Court, as in the case of Dred Scott, in a regime that counsels respect for the law, if we were persuaded that the decision had been deeply wrong—so wrong, in fact, that it would change the regime itself if it were acquiesced in? In the circles of the Claremont Review of Books, Lincoln's understanding has become quite familiar, but it is never out of season to recall at least the main lines of his argument. Lincoln remarked that if the Supreme Court decided that Dred Scott would remain a slave, others must not form a mob to free him. The decision of the Court would be respected—but only as it bore on the litigants of that case.
But there was a serious question about the principle, or the doctrine, that the Court had set forth in establishing the ground of its judgment. That principle promised to shape the laws, and fix the policy of the country, in a manner that swept far beyond the case at hand. Lincoln's argument was that neither the citizens, nor the politically responsible officers of the government, were obliged to accept that principle in the matters that came before them. He insisted, in other words, that the political officers of the government would not be obliged to accept the larger doctrine put forth by the Court unless they themselves were persuaded of its rightness by the reasoning of the judges. Instead, the political officers had to preserve their freedom to act on another principle, and seek to overturn the rival doctrine put forth by the Court. Were that not the case, as Lincoln said, in his First Inaugural,
the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal. [emphasis added]
Lincoln's understanding was tested right away, in the first days of his administration, in two cases coming out of Massachusetts. A young black man in Boston had sought a passport to study in France, but he had been denied the passport on the strength of the Dred Scott decision: as the rationale ran, black people could not be citizens, and therefore, it was reasoned now that they could not carry American passports. For the same reason, a black inventor in Boston was denied a patent under the laws of the United States. Neither case involved a slave litigating over his freedom. In both cases, agencies of the federal government had applied the principle of the Dred Scott case to circumstances quite remote from that case. The Lincoln Administration quashed both decisions. It issued the passport and the patent, and it came forth with an opinion of the Attorney General, Edward Bates, declaring that, in the understanding of the Lincoln Administration, free blacks born in the United States were in fact citizens of the United States. In all decisions coming under its hand, the executive would act on that premise—even though it ran counter to the principle proclaimed by the Court in the Dred Scott case.
Understanding the Argument
Now we shift to another time and another scene: Massachusetts, early in 2004, just after the Supreme Judicial Council has struck down, in effect, the traditional laws on marriage and installed same-sex marriage. I was trying to suggest, in articles and pleadings with friends, that Governor Mitt Romney take Lincoln's approach to the problem: he would respect the outcome of the case in regard to those litigants in the case of Goodridge v. Department of Public Health (2003), but he might insist that the offices issuing marriage licenses, that the justices of the peace performing marriages, would still be governed by the standing laws. Any couples seeking to elicit the same judgment from the courts would have to take it upon themselves to bring forth their own suits.
I sketched out this proposal to a dear friend, a seasoned and accomplished lawyer, and a pro-lifer. He was aghast. He insisted that if Romney backed such a scheme, he would deserve to be impeached. But did that mean that Lincoln had been wrong? It doesn't matter, said my friend, for no one understands that argument any longer. No one understands? Then why is the Left permitted to keep acting upon the same doctrine even in our own day—most notably regarding the War Powers Act of 1973?
In the case of INS v. Chadha (1983), the Supreme Court struck down the "legislative veto," the scheme in which the executive could take the initiative on any matter—until the act was vetoed, in effect, by Congress. And yet the legislative veto was absolutely central to the War Powers Act: the president could commit troops for 60 days, but the deployment could be sustained only if it were upheld by Congress. Presidents since then, including Bill Clinton, have largely ignored that Act, but Democrats cherish it too much to accept its repeal. In the understanding of the Left nothing done by the Court has undone the constitutionality of the War Powers Act. The Chadha case has been understood by the Left as a case confined to the issue of immigration. In other words, the Left has narrowed the holding in Chadha to settle only the issue engaged in that case, for the litigants in that case. But the broader rule, or principle, articulated in that case, has not been accepted, and indeed Congress had continued to enact a stream of measures containing the legislative veto. Which is to say, the Left has backed into the Lincolnian position even as conservatives affect to believe that no one any longer understands that argument or takes it seriously.
One of the ironies here is that many of the anxieties suffered by conservative lawyers and jurists would be notably diminished if they merely accepted Lincoln's understanding. Robert Bork seriously suggested for a while a plan to allow Congress, by a two-thirds vote, to override a decision of the Supreme Court on constitutionality. He receded from that plan; but really, there was no need for it. Lincoln's understanding offered a plan far simpler—and far more effective. Judge John Noonan once offered a list of the cases in which Congress confronted the Court and the Court was induced to shade away from a decision it had handed down. The most dramatic example of course came with Dred Scott: in June 1862, the Congress passed—and Lincoln signed—a bill that barred slavery from the territories of the United States. That Act directly contradicted the holding in Dred Scott. The matter could proceed to a constitutional amendment (which it did). But it could have been settled also in another way, as the Court was persuaded by another branch of the government to take a sober second look at what it had done, to reason anew, and come to a better judgment.
The Law of You-Know-What
No judge has won more conservative hearts in recent years than my own friend Antonin Scalia. Scalia has railed against natural law as too hazy to offer guidance to judges in any case, too productive of disputes that find no answer. And yet, in his relentless, piercing, logical style, he has offered at times the most striking examples of natural law reasoning, all the while professing that it could not be done. One must recall in this vein Alexander Hamilton in Federalist 78, when he explained that we work under this rule of construction: that any later statute supersedes an earlier one. But that is not the rule we employ with the Constitution, for the Constitution that came earlier must take precedence over the statute that comes later. Were that not the case, the Constitution would lose its meaning as a control over the legislative power. But how do we know this, asks Hamilton, since this understanding, so critical to the practice of our law, is not contained in the Constitution. As Hamilton put it, these rules to guide the law are "not derived from the positive law, but from the nature and reason of the thing."
Might this have been what Blackstone had in mind when he referred to "the laws of reason and nature"? But conservatives seem serenely unaware that they are doing natural law when they bring to bear on the cases at hand a rigorous application of the canons of reason. If we had the space I could offer some notable examples, drawn even from the most recent cases of Rapanos v. United States or Hammon v. Indiana in which Scalia took matters to the logical root. In one instance he had to remind Justice Kennedy that that which is "like navigable waters" is not itself "navigable waters," under the statutes of the United States—or, we might add, the statutes of any other place. So compelling, in fact, was his argument, that it is quite plausible that courts in exotic places, in Zimbabwe or Hungary, could find their way to the same ground in settling their own legal judgments. The law of contradiction is universal because it is logically necessary. When jurists bring to bear the canons of reason, grounded in that law of contradiction as its anchoring point, they furnish the ground for a law that is no less universal in its reach. They are doing in effect the law of the dreaded N-word (nature, natural law). Or we might say, the Law of You-Know-What—just as long as we don't say the word and acknowledge that we may be doing natural law, even while we spend a certain genius in deriding that enterprise.
But if that kind of argument, artfully made, will not dissolve the uneasiness of Justice Scalia and other conservative judges, why might they not draw some consolation yet from Lincoln's teaching? Even if the judges made some glaring mistakes as they sought to apply the laws of reason, and do that version of natural law reasoning, those mistakes can be narrowed to the case at hand.
The political branches may resist, may counter, may confine the reach of a decision, and put another rule in its place. They may continue, in other words, an ongoing conversation, in which no branch, exactly, has the final word. And that state of affairs makes it necessary that the president, no less than the judges, has the standing and the responsibility to reach judgments on the Constitution. More than that, he has the obligation to impart those judgments to the public—in the first place to make clear the justification of his own acts, and in the second, to remind the public that the Constitution is not the sole custody or responsibility of the judges.
Commander in Chief
President Bush, to his credit, has sought to impart to the public many articles of conviction important to know: most notably, that one doesn't deal with deadly enemies by serving them with legal papers, or that there is a compelling case for encouraging, in other countries, a regime of consent built upon "natural rights." Indeed, Mr. Bush may be the first president since Lincoln to speak seriously of natural rights—viz., that we did not give these rights to ourselves as a species of positive law, that they are grounded in a distinct human nature, and the gift of that Creator who endowed us with rights. But anyone taking in a full picture of President Bush over the past six years would not find any suggestion that he understands, as one of the principal duties of his office, the framing of judgments about the Constitution and its bearing on those measures that come under his hand. Quite the opposite: Mr. Bush has been content to treat constitutional matters as someone else's business—as business meant distinctly for the courts. He has certainly stayed as far away as possible from the most contentious constitutional issue of our time, abortion. He has spoken on this matter only when absolutely necessary; he has taken virtually no place in the public argument on this question; and he speaks only in the setting of the religious or pro-lifers. The media treat his remarks in these settings as meant only for the groups assembled, not as part of an effort to draw the larger public into a conversation or an argument.
Granted, he mulled aloud over the constitutionality of the McCain-Feingold Act, something to the effect that this vast scheme to restrict the freedom to criticize candidates for office might possibly be unconstitutional. But when the critical time came, when the bill passed, he kicked the can down the road to the Court. He exercised no veto, made no statement to call into question the compatibility of that Act with our fundamental law. Here, as elsewhere, his political reflex was just to take the issue off the table, to avert any attempt to caricature him as an enemy of reform. Perhaps he might well have thought that he had no better judgment to offer here than the justices of the Supreme Court, as they concentrated their tutored minds. And yet, there was an institutional interest at stake: an interest in reminding the public that the president has standing to pronounce on these questions of the Constitution, and that he speaks at times for the deep interest of the public that may be bound up with preserving, unimpaired, the constitutional powers of the executive. The deeper irony is that the unwillingness of the president to grasp his warrant here has come back to bite him on the war powers of the executive.
That is the one matter of constitutional law that has indeed drawn the president's most earnest interest. He had not expected that the central, dominating part of his presidency would be the direction of a war, but there he is, and if he had to pick his battles, it made sense for him to expend his efforts, in any "constitutional" arguments, by concentrating on powers of the executive in time of war. And yet, the fact that he has so conspicuously receded from any responsibility to speak on the Constitution has impaired his efforts to invoke the Constitution in defense of his own powers. His exertions there have been painted more readily as an interest in defending his own personal power. Lost in all of this is the sense of the immense stakes that the rest of us have in preserving those powers of the executive unimpaired. Here I speak with an edge of personal interest, for there is probably no one in my family who would be alive today were it not for the flexing of the executive powers in foreign affairs by FDR beginning in 1940-41. In comparison with FDR, George W. Bush's flexing of that power has been far more restrained, far more limited and hedged; and yet he has been pilloried for his efforts. Consider, as but one example, a bill signed by the president on December 30, the "Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006." Among its many curious provisions, the bill stipulated that "no funds available to the Department of Defense...may be used to transfer defense articles or services, other than intelligence services, to another nation or an international organization for international peacekeeping, peace enforcement, or humanitarian assistance operations, until 15 days after the executive branch notifies six committees of the Congress of the planned transfer." The intent was understandable, but the measure clumsy. It made eminent sense for the president to observe that, "to the extent that protection of the U.S. Armed Forces...might require action...sooner than 15 days after notification, the executive branch shall construe the section in a manner consistent with the president's constitutional authority as Commander in Chief." The drafters of the bill might not have noticed that they were undercutting the discretion quite necessary to the commander in chief, and there was nothing at all amiss in the president merely noting that he would read the bill in a manner that was more consistent with his reading of the Constitution. And yet, for this move on his part, quite familiar over the years with American presidents, he has been denounced as though he had embarked on some sinister scheme, springing from a perverted genius of his own. Even Dianne Feinstein, usually more temperate than her Democratic colleagues in the Senate, took leave of her sobriety. She remarked that ‘'if the president is going to have the power to nullify all or part of a statute, it should only be through veto authority that the president has authorized and can reject—rather than through a unilateral action taken outside the structures of our democracy.'' It seemed to escape the notice of Senator Feinstein that Mr. Bush was doing nothing more than John Marshall had professed to do in Marbury v. Madison: not strike down an Act of Congress, but simply explain that he could not give effect to a statute that, in his judgment, ran counter to the Constitution. In case Senator Feinstein hadn't noticed, when judges do these kinds of things, they act as "unilaterally" as the president.
The Court, in the recent Hamdan v. Rumsfeld case, simply put aside the congressional act that barred the jurisdiction of the courts in dealing with detainees in this time of war. Had the Court consulted with the Congress before it showed such contempt for the clear powers of Congress to determine the appellate jurisdiction of the Court? And speaking of breaking through constitutional boundaries: Had Senator Feinstein noticed that the judges, for the first time, presumed to transfer to themselves the power to second-guess and supervise decisions taken by the military in a theater of operations?
The president made the right move when he called on Congress to "clarify" the law, but he passed up a moment to impart clarity himself. What he was really asking the Congress to do was overturn the judgment in Hamdan, which the Congress essentially did. Justices Stevens and Kennedy were apparently willing to add to their luster by appointing themselves as de facto presidents of the United States in making decisions governing the battlefield. But as John Yoo remarked, it went apparently unnoticed that the Congress had now "strip[ped] the courts of jurisdiction to hear any habeas corpus claim filed by any alien enemy combatant anywhere in the world." That point would not have slipped the public understanding if Mr. Bush had drawn the line sharply this past summer and challenged the Court for extending the reach of its power yet again, into a domain where judges should never tread. For there is no principle running deeper in the American regime—running back, indeed, to the Revolution and to the principle of government by consent: the lives of the American people may not be put in the hands of officers, whether in the British parliament or in courts, who bear no direct responsibility for the lives that are at stake. That should have been ground on which Mr. Bush called Congress back from the summer to legislate. And it would have helped to establish the ground for the campaign in the fall.
Everything, of course, is connected, and what Mr. Bush might have done to defend his constitutional powers in this case would have carried over to the other places where he has been accused of high crimes and misdemeanors. The charge that lingers, most notably, involves his willingness to go beyond the provisions of the Foreign Intelligence Surveillance Act (FISA) in ordering surveillance without a warrant when time was pressing. During the Second World War, FDR wished to tap all calls made in the country for the sake of investigating their possible "subversive" nature. He was advised by Robert Jackson that Congress would never approve, and so the president ordered the wiretapping on his own while sparing Congress the need to face that uncomfortable question. FDR fell back upon his constitutional responsibility as commander in chief to defend the country. Justice O'Connor once noted that, in the judgment of Congress, Smith and Mt. Holyoke, as colleges for women, do not offend the Civil Rights Act. Still, she observed, that would not dissolve the question of whether those arrangements, for single-sex schools, were compatible with the 14th Amendment. Why does it seem so bizarre then that a president could make a comparable argument? If the procedures of a statute get in the way of moves that are necessary to protect American lives, his obligations under the Constitution may have to override his adherence to the statute.
One telling sign of the president's stance on matters of the Constitution was revealed indirectly by Karl Rove. The occasion was the winter meeting of the Republican National Committee last January 20, on the anniversary of George W. Bush's inauguration. It was, altogether, a remarkable speech with a range and nuance that befitted a president, not merely the main advisor to the president. Rove observed, at the outset, that "our opponents are our fellow citizens, notour enemies." He called for civility in discourse; he would not question the patriotism of the Democrats. But he would raise probing questions about the willingness of the Democrats to do the things necessary to defend the country. He would hit hard on the themes of war, taxes, and growth, and he took note of the shifting alignments that had brought the Republican Party to the threshold of becoming the majority party. And yet, Rove said nothing of the issues that, far more than others, had produced the dramatic partisan shift in many parts of the country that had once been the firmest of Republican strongholds—e.g., Bergen County, New Jersey; Nassau County, New York; Bucks County, Pennsylvania. These areas had been flipped by the issues of the "culture wars," and foremost among them the issues of abortion and same-sex marriage. But of these, Rove would say nothing. Or rather he would speak in a code: he would refer to the appointments of John Roberts and Samuel Alito to the Supreme Court. In other words: we've given. What we have done about these matters is appoint Roberts and Alito, and the rest is up to the alchemy that takes place in the Court.
Karl Rove is no trifling ally of the pro-life movement, but his meaning was rather clear: Bush would play no role in making arguments about abortion and the "life issues"—he would leave those matters to the courts. The president did come down on the side of supporting a constitutional amendment on marriage, but once again, as on abortion, the leadership came from Congress, not from the White House. The activists for same-sex marriage were stunned by setbacks in the elections of 2004, but over the past year the momentum has remarkably shifted back to their side. The crisis over marriage has been deepening, and yet it is clear that the president will take no role in stirring the public argument.
In the recent midterm elections, the voters in seven states passed amendments to their constitutions in an effort to preserve marriage as the union of a man and a woman. Even liberal Wisconsin passed that kind of measure, which lost only in Arizona—and lost there even though it commanded a majority among blacks. Still, the satisfaction has been tempered by the awareness that any of these amendments may be swept away, in a stroke, by a federal judge. The only surety here would come with a constitutional amendment, and that may have to well up now from the states themselves. With Rick Santorum sadly removed from the Senate, the Republican caucus loses one of the main sources of energy pressing that issue on a Republican leadership utterly wanting in the conviction or the nerve even to raise the matter. The president came out of the election of 2004, as he said, with "the wind at my back." He used the moment, in a game way, in an effort to alter the scheme of Social Security. And yet it was arguable that the country, 30 years from now, might seem little changed if we were muddling through with patches on Social Security. But the country is likely to look quite stranger to us if the institution of marriage unravels even further, bringing polygamy, along with other variants yet to reveal themselves. Mr. Bush made a judgment. But that judgment did not spring from a sense of just what institutions were more or less central to the regime he was seeking to preserve.
Ronald Reagan was able to stir the public argument in a useful way just by raising questions—as he did when he raised the issue of whether children in the womb could feel pain when they were aborted. George W. Bush has had the chance to intervene, in a productive way, with a Republican Congress, on matters touching abortion by raising questions quite as simple. For example: the courts have enjoined the bill that prohibits the grisly surgery of partial-birth abortion, but why should the taxpayers be implicated in a surgery that nearly 80% of the public opposes? Should we consider removing federal funds from any hospital or clinic that houses that "procedure"? And if we did do that, would the formulas of the Civil Rights Acts apply? If a student gets a loan from the federal government, all parts of a college or university now come under all federal regulations. Would the same thing be said of abortion clinics? If a clinic has, among its patients, anyone who is on Medicare, or receives a Social Security check, or even a refund from the IRS, is the whole place a recipient of federal funds? Or might the Democrats be willing then to revisit and undo this whole scheme of extending the federal power by offering and withholding federal grants?
There was no need here for an executive order. There was a need only to raise questions, as Ronald Reagan in the past raised the questions that drew in his adversaries. The simple raising of these questions would have generated some wholesome tensions, especially in the tents of Mr. Bush's adversaries. Such questions might also have illuminated something of the Constitution, and advanced, in small steps, the cause of protecting children in the womb. Oddly enough, the utility of raising those questions may even be more pronounced in the aftermath of the election. For the Democrats have in their ranks many more pro-lifers, who will be under some need to show the folks back home that they were serious. Here is one of those instances in which the willingness to generate a certain strain for the opposition is not only good for policy, but artful politics as well. Mr. Bush could help sharpen the differences between the parties as we run up to the presidential election in 2008. But to raise issues in this way has never been part of Mr. Bush's style. It would take a surge of imagination and playfulness to raise them now; and if Mr. Bush did not show those reflexes in the past, he seems unlikely to show them now. Once again, raising issues that touch on the meaning of the Constitution seems not to be part of his "job description," or his understanding of himself.
The scene: Washington, D.C., hearings before the House Judiciary Committee, July 2001. It is the second go-round on the bill to protect a child who survives an abortion (the so-called Born-Alive Infants' Protection Act). I was given the privilege of leading the testimony for this bill, a bill I had in fact proposed years ago in a paper prepared for the man who would become the first President Bush. We were seeking to establish, in the most modest step of all, that Congress could indeed legislate to mark the boundaries or limits of the so-called right to abortion. The legislation could not help offering a construction that would mark a limit to the reach of the holding in Roe v. Wade (1973)—namely, whatever the right to abortion meant, Congress would insist that the holding could never imply a right to kill a child now born, with the pregnancy of the mother ended. Our persistent adversary, Rep. Jerrold Nadler (D-N.Y.), was quick as ever to pounce: if we were in the business now of correcting or undoing certain holdings of the Supreme Court, why don't we turn the genius of Congress to correcting another controversial case, Bush v. Gore, the case that essentially settled the election of 2000. The transcript, as ever, was garbled, but what was said in response was this: we would indeed encourage you, Congressman Nadler, to try your hand at that, for the exercise must always be useful. It is good to remind people that the political branches have a role to play in interpreting the Constitution. But you'll have to keep in mind, Congressman, this part of Lincoln's understanding: whatever you do in correcting Bush v. Gore, just recall that you will have to respect, of course, the holding of the case in regard to those two litigants.