Taking a constitutional stand

Charles Reichley
Published: March 12, 2008

In 1954, the Supreme Court of the United States, in Brown vs. Board of Education, ruled against school segregation, finding “separate but equal” laws unconstitutional. In 2008, that is a popular decision —it is hard for this generation to understand how such laws were ever passed. 

But at the time, the ruling had widespread opposition. Most of us know about Governor George Wallace, on the steps of Foster Auditorium at the University of Alabama, blocking entrance of two black students.  Fewer might know that Virginia’s own Harry Byrd strongly opposed desegregation, even arguing to close the schools instead. 

Google “Ruled Unconstitutional” and you’ll find example after example of laws being thrown out. “Funeral Picketing Law Ruled Unconstitutional.” “Abortion Procedures ban ruled Unconstitutional.” “Part of Patriot Act ruled Unconstitutional.” “Anti-Spam Law Ruled Unconstitutional.” The list goes on: warrantless wiretaps, Pledge of Allegiance, Colorado smoking ban, line-item veto, Ten Commandments, Washington, D.C., gun ban, Bible distribution in schools, child Internet pornography restrictions — all ruled unconstitutional by some court.

I imagine readers will find some things in the list they support and some they oppose. A lot of people cheered the 1973 Supreme Court’s ruling in Roe V. Wade that found abortion restrictions unconstitutional. A lot of other people decry that ruling and have worked ever since to overturn it.

But one thing is generally true — the laws that are found unconstitutional had support at the time. 

After all, these laws were passed by a majority of people in an elected representative legislature. While politicians sometimes pass unpopular laws, it usually doesn’t take a court to overturn a law that is widely unpopular. For example, we didn’t need a judge to rid us of the “abusive driver” fees.  No, laws that are found unconstitutional are usually popular, or at worst grudgingly accepted. 

Some argue the Constitution exists to “protect” the minority from such “tyranny of the majority.” Alexander Hamilton, in Federalist Papers 78, argues for judicial independence by noting the judge’s task to defend the Constitution against legislators when “a momentary inclination happens to lay hold of a majority of their constituents, incompatible with the provisions in the existing Constitution,” leading them to pass unconstitutional laws.

In fact, the Constitution’s purpose is to limit the acts of government, not to defend the minority.  But since it is unbridled acts of the majority through government that most threatens the minority, the Constitution, by imposing restrictions on the legislature, does indirectly act to protect the minority.

While a court ruling may be denounced by one group or another as “overstepping” or “activist,” those terms confirm the court’s duty to enforce the Constitution.  “Overstepping” presupposes an acceptable step, “activist,” by implying “too much,” suggests an acceptable action.

I disagree with a point in Bruce Roemmelt’s recent letter “Saved whether we want it or not.” Conceding that the Regional Transportation Authority’s taxing power is unconstitutional, he still attacks Bob Marshall for taking a stand, saying “Delegate Marshall chose to save us from an unconstitutional law, whether we necessarily wanted to be saved or not.” 

It’s possible that a majority did not want to be “saved.” If we did, we would have pushed to elect representatives who would overturn the law, as we did with the abusive driver fees. But the Constitution is not some anachronistic document to be ignored when it interferes with our desires. A legislator takes an oath to “support the Constitution” —  and that oath does not include the phrase “except when it is inconvenient or undesirable.” 

I’m sure there were people who were upset at the parents and lawyers who brought the cases that led to the Supreme Court’s Brown anti-segregation decision.  I can imagine them decrying those who defended the Constitution “whether we wanted them to or not.” But they would be wrong. 

There certainly are more than a few supporters of new taxes who are upset with the decision of the Virginia court. 

I’d respect an argument that the court misinterpreted the Constitution — but not an attack against a man who stood on principle, doing the ethical and responsible thing in the face of widespread pressure
to “let it go.”

The passage of the Transportation Authority, along with the revelation that Virginia is unconstitutionally handling the Virginia Lottery proceeds, shows that we need more people like Bob Marshall, willing to stand firm and defend us from unconstitutional acts of our legislature.

Charles Reichley has been a Prince William County resident since 1981. He can be reached at critically .