What Would Alexander Hamilton Say?

Hanna, I think O’Donnell’s witchcraft dabbling isn’t a dealbreaker for her Christian stardom. As our colleague Noreen Malone points out, her fans can digest it as part of her quest for group belonging. The more critical question, of course, is whether O’Donnell can appeal to more than just her Tea Party base. If O’Donnell is a Palin proxy—and she’s the closest to it among the November female candidates, I think—then her November race, in middle-of-the-road Delaware, is the best test yet of the broader power of the Mama Grizzly brand. O’Donnell is supposed to lose, and if she does, we can match up the Delaware election night results with Palin’s low favorability ratings outside her core faithful. But if O’Donnell pulls out an upset, it will scramble that picture. We’ll have to come back together to realign our political constellations.

But back to the Constitution. Our commenters have been thrashing out whether legislators should make their own notions of constitutionality the “litmus test” for passing legislation, as O’Donnell put it. They’re responding to Dahlia, who harked back to the rule of judicial supremacy from Marbury v. Madison—which held in 1803 that the Supreme Court, not Congress, has the final say about what the Constitution means. George Purcell writes, “You aren’t seriously suggesting that legislators ought to just pass whatever the hell they wish and wait for a court to determine if the law is legal or not????” Greg Schivley responds that no, this is about “the role of the courts to rule on the constitutionality of legislation that has been passed, rather than having legislators certify that by passing a law they have deemed it to be constitutional. You know, checks and balances.”

Slate’s John Dickerson points out to us that Alexander Hamilton saw things similarly: ” ‘It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents,’ Hamilton wrote in the Federalist Papers. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. “

At the same time, there’s a different version of this constitutional interpretive dance—one with more secular, liberal roots. It’s called democratic constitutionalism, and it gives courts “neither the first word nor the last word on the meaning of the Constitution,” as Yale law professor Jack Balkin puts it. “Rather, their interpretations reflect the values of their time, including the work of political and social movements.” Balkin adds, “Democratic constitutionalism has a second meaning—the idea that in the current age many of the most important constitutional questions are best handled by the political branches rather than by courts.”

O’Donnell should like this, because it acknowledges Congress and We the People’s roles in interpreting the constitution. And yet somehow one feels like she wouldn’t, because it does not have the correct Biblical resonance—the feeling of “constitutional repentance,” as she puts it. So the conception of liberty she’s giving voice to is hardly the same as the liberty doctrine judges have lately been developing as a basis for striking down laws that discriminate against gay people. But you know, in the end, Marbury and the Supreme Court’s final say over the constitution isn’t going anywhere. And history shows that while the Court makes occasional flights to the extremist hinterlands, it almost always tacks back to the center. Hanna, bring on the pocket constitutions for Tea Party sale with a Palin or O’Donnell seal of approval. Hell, print the Second Amendment in bold. The rest of the Bill of Rights will still be in there. Just like the parts of the Bible that O’Donnell surely skips over.

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