The odds that I will agree with David Bernstein over Dahlia Lithwick are…not good, but in this case Bernstein is right. I’ve been trying to condense the paper I presented at WPSA earlier this year into blog format (very short version: the United States doesn’t have a regime of “judicial supremacy” in any meaningful sense, and this is probably a good thing), but I can’t see what’s objectionable about Christine O’Donnell saying she’ll scrutinize legislation for its constitutionality while considering it; indeed, if anything legislators are obliged to do so. O’Donnell’s particular constitutional arguments might be objectionable, but that’s a different issue. As long as they don’t actually defy court orders, there’s nothing wrong with reaching judgments about the Constitution that differ from those of a majority of the Supreme Court at any particular time.
Put it this way — despite the Supreme Court’s recent pronouncement on the subject, I do not believe that the equal protection clause of 14th Amendment prohibits local school boards from voluntarily integrating their schools. If i were a school board official in Louisville or Seattle I would reluctantly agree to abide by the court’s decision, but I certainly would have gone ahead with the programs before the fact despite knowing that 5 members of the Supreme Court might disagree with me. And just as Bernstein would be sympathetic to O’Donnell’s constitutional arguments, I also wouldn’t start agreeing with a pre-New Deal conception of federal power if the Supreme Court suddenly started throwing out important economic legislation on commerce clause grounds — and nor, I’m sure, would Dahlia.
There are many, many things to criticize Christine O’Donnell for — but she’s right that the Supreme Court doesn’t and shouldn’t have a monopoly on constitutional deliberation.