Legislators Ignore Constitutionality Of The Laws They Enact


On April 25th the Tennessee State Senate voted unanimously to allow federal and state law enforcement officials full access to the medical records of the citizens of Tennessee. According to SB 2407, “…state and federal law enforcement personnel authorized to have access under 53-10-306 shall be permitted to have real time electronic access to the database…” The statute continues by stating that access is permitted “without the necessity of obtaining a search warrant.” It is a law which is scheduled to go into effect on July 1, 2012 as “the public welfare [requires] it.”

Outraged Tennessee residents who wrote and emailed their state senators about the Constitutionality of the law received the following replies from 2 of the lawmakers:

1.) “Legislation is only unconstitutional when the high court deems it so,” and

2.) “Then I’m sure it will be struck down in court.”

As Liberty Legal Foundation head counsel Van Irion so rightly puts it, “Both of these statements reflect a shocking disregard for the Constitution, for the Senators’ Oaths of Office and for the rights of their constituents.”

From Roe v Wade in which legal authority was granted via the convenient manufacture of a Constitutional “right to privacy,” to the 70 year old Wickard v Filburn ruling which held that the congressional power to regulate commerce extended to forbidding a farmer growing wheat for his own family, legislators have enjoyed a nearly limitless increase of their already substantial power thanks to the deference of the Supreme Court and the judiciary nationwide. After all, courts assume written statute will be Constitutional for it is the job of legislators to consider not only the effect but the Constitutionality of their work.

Some legislators are undoubtedly ignorant as to this Constitutional requirement of their position. Others—it often seems a majority—are happy to deliberately exceed the proper and legal limits of their Constitutionally granted power in the pursuit of ever greater authority over the lives and activities of the American public.

“Every member of all three branches of government has an obligation to follow the Constitution,” writes Irion. Were it not the case, “…there would be no need for them to take an oath to uphold [it].” 

But over the years, too many lawmakers have begun to exercise authority based on the notion that they can literally get away with anything, enact any law they wish regardless of its Constitutionality.

As a case in point, New York Senator Chuck Schumer is already working on a measure to “get around” an expected Supreme Court ruling upholding the Arizona immigration law argued before the Court this week.  Rather than abide by the decision of the nation’s highest court, Schumer’s only interest is in subverting it, revealing his contempt both for the authority of the court and for his own responsibility to the Constitution. (4)

To legislators of Schumer’s ilk the problem is not their fundamental assault on the rights of the American public, but rather making certain their choice of legislative language will pass muster with the Justices. If the semantics are right, the law must be acceptable!

Whether it be a result of deliberation or ignorance, the abuse of legislative power exhibited by lawmakers must be ended. By whatever means are necessary, the American public must be willing to get it done.

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