Congress, the Constitution, and Divided Government

Congress, the Constitution, and Divided Government

Congress, the Constitution, and Divided Government

Congress, the Constitution, and Divided Government


Congressional constitutional deliberation is circumscribed by the political regime and time within which it takes place. By understanding the three cases studied here to have taken place within affiliated time, by which they inhabit and exhibit specific regime constructs, the political regime and political time paradigms are affirmed. Each case demonstrates the importance of regime contestation: the normative debate between competing national governing coalitions. Congress acts as a partisan institution functioning within a political environment encompassing both fundamental "settled" values and secondary "unsettled" values. Its deliberation is symbolic and derivative in nature, acting under an umbrella of judicial supremacy and attempting to influence unsettled values, by which regime shifts are desired. These cases belie the notion of "settled" law and a "settled" regime, yet Congress plays a representational role by acting, and, further still, continues and perpetuates an ongoing dialogue with the other branches and national polity which would not take place otherwise.


No doubt the political branches have a role in interpreting and applying the Constitution.

Regardless of the fact that the second portion of former Chief Justice Rehnquist’s statement leaves proper delineation of the first part ambiguous, if the first half is accurate, it begs the obvious question: what role has the branch of government mentioned in Article I of the Constitution (Congress) played in “interpreting” and “applying” the Constitution? At the most elementary level, Congress is quite literally connected with the Constitution. Not only are members of Congress constitutionally required to take an oath “to support and defend the Constitution of the United States,” but many observers agree that, at

Supreme Court Justice William Rehnquist, United States v. Morrison, 529 U.S. 598, 616 (2000). Rehnquist continues, “but ever since Marbury [v. Madison] this Court has remained the ultimate expositor of the constitutional text.” Emphasis added.

U.S. Constitution, art. 6, cl. 3; 5 U.S.Code. § 3331 (1982). As Louis Fisher states, “[m]embers of Congress take an oath of office to defend the Constitution, not the President.” Congress, Senate, Committee on the Judiciary, Statement by Louis Fisher, Specialist in Constitutional Law: Exercising Congress’s Constitutional Power to End a War, hearing, 110 Cong., 1 sess., 30 Jan. 2007. Currie reminds us that “judges are not alone in this regard. Others swear to uphold the Constitution as well: presidents, cabinet officers, members of Congress – indeed every federal, state, and local officer in the land.” David P. Currie, “Prolegomena for a Sampler:

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