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Copyright (c) 1985 North Carolina Law Review
North Carolina Law Review

ARTICLE: CONSTITUTIONAL INTERPRETATION BY MEMBERS OF CONGRESS.

APRIL, 1985

63 N.C.L. Rev. 707

Author

LOUIS FISHER +

Excerpt

In a recent article Judge Abner J. Mikva of the United States Court of Appeals for the District of Columbia Circuit examined Congress' duty and ability to consider constitutional questions. 1 He concluded that Congress has neither the institutional nor the political capacity to engage in effective constitutional interpretation. Although each member of Congress takes an oath to support and defend the Constitution, Mikva contended that legislative debate, for the most part, "does not explore the constitutional implications of pending legislation; and, at best, Congress does an uneven job of considering the constitutionality of the statutes it adopts." 2

Judge Mikva criticized Congress for "pass[ing] over the constitutional questions, leaving the hard decisions to the courts." 3 Constitutional issues, he said, becaome "subsidiary to the desire dto crack down on crime or bring administrative agencies under control . . . ." 4 Because constitutional issues "often present the most difficult value conflicts in society," it is tempting for members to sidestep these issues and leave them to the courts, "the ultimate nay-sayers." 5 "Such behavior by Congress is both an abdication of its role as a constitutional guardian and an abnegation of its duty of responsible lawmaking." 6 Building on three case studies, he advised Congress to limit its role to screening the easy cases, rejecting patently unconstitutional legislation, providing a different viewpoint on the Constitution, and clarifying its motivation when legislating. 7

These passages leave Congress with a mixed message. On the one hand, it should not ...
 
 
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