Jonah Goldberg has a great piece over at National Review Online about how the Congress and the President (as an institution) have ceased making any attempt to determine the constitutionality of laws prior to enacting them, instead just writing anything they want and leaving it up to future litigation — and eventually the U.S. Supreme Court — to decide which parts of a law are valid and which are not. That has rather obvious ill effects:

The Court, by assuming that responsibility, and the other branches of government, by surrendering it, have permanently damaged the constitutional order. Indeed, Thomas Jefferson believed that a judiciary with final jurisdiction over the constitutionality of presidential and legislative actions “would make the judiciary a despotic branch” of government. 

Today, that despot has a name. It’s Justice Anthony Kennedy. Kennedy rules — thanks to his status as the court’s swing vote — as the true King of America.

In the course of the article, he takes President Bush to task for what he calls “his one act that does approach an impeachable offense” — signing the campaign finance reform bill in 2002 “even though he made it clear he thought the law was unconstitutional.” Rather than veto it, like he should have done President Bush explained, “that the courts will resolve these legitimate legal questions as appropriate under the law.”

I still remember how angry I was that he signed that monstrosity, and it is to my perpetual amazement that the Supreme Court upheld its constitutionality. It’s a perfect illustration of Goldberg’s point.

Hat tip: Ace.