Constitutional Interpretation

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Statement by Louis Fisher, appearing before the House Committee on the Budget, “Line-Item Veto — Constitutional Issues,” June 8, 2006. It is possible to write legislation giving the President a form of item-veto authority that satisfies the standards set forth in Clinton v. City of New York (1998). However, Members of Congress have an independent and non-delegable obligation to protect their institutional rights, duties, and prestige. The item-veto proposal before the committee damages the prerogatives of Congress by signaling to the public that lawmakers cannot properly conduct their constitutional duties over federal spending. Moreover, no evidence supports the view that that the President is more responsible on fiscal affairs, either on aggregate amounts or particular projects.

Louis Fisher, “Interpreting the Constitution: More than What the Supreme Court Says” (PDF, 108KB), Extensions, Fall 2008. In a democratic society, questions of constitutional law require a political dialogue that involves all three branches of the national government, all fifty states, and the general public. If the meaning of the Constitution depended solely on unelected judges, popular sovereignty would be undermined and replaced by judicial, hyper-technical interpretations increasingly alien to the public. There is no historical support for the view that judges are better positioned to safeguard minority and individual rights. Mutual respect among the branches and between the branches and the public provide continuing legitimacy and life to the Constitution.

Statement by Louis Fisher, appearing before the House Committee on the Judiciary, “Congress, the Court, and the Constitution” (PDF, 432KB), January 29, 1998.  In the last four decades, Congress has on only one occasion held general hearings on its duties to independently interpret the Constitution.  Is the legislative branch coequal with the judiciary in this task or must it defer to the courts?  The record demonstrates that Members may act not only in advance of court rulings but afterwards as well, creating a broad and constructive interbranch dialogue.  In recent years, congressional committees are again examining this issue.  This statement was reprinted in “Congress, the Court, and the Constitution,” hearing before the House Committee on the Judiciary, 105th Cong., 2d Sess. (Washington, D.C.: Government Printing Office, 1998).

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Last Updated: 08/03/2012