Justice Parker: Court Should Sometimes Defer to Legislature in Constitutional Interpretation

Todd Zywicki at the Volokh Conspiracy comments on "an interesting concurring opinion by Justice Parker from the Alabama Supreme Court:"

Justice Parker's opinion begins as follows:

It is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). In these words, which enshrined the principle of judicial review, Chief Justice John Marshall noted that constitutional interpretation is emphatically the responsibility of the judiciary. He did not say that constitutional interpretation is exclusively the responsibility of the judiciary.

...Interesting opinion that invokes, among other sources, Andrew Jackson's veto of the Bank of the United States on the ground that it was unconstitutional, notwithstanding the Supreme Court's holding in McCullough.

The case was Birmingham-Jefferson Civic Center Authority v. City of Birmingham. New World Man has posted a link to the text of Parker's opinion here.

Parker's point is one that is often forgotten. Today, it seems that the prevailing assumption is that the judiciary reigns supreme when it comes to constitutional interpretation. Thus, the legislature and executive have gotten in the habit of deferring many questions of constitutionality to the judiciary. That's exactly what the President and Congress did with campaign finance reform, for example. President Bush even said that he believed that parts of that bill were unconstitutional, but he signed it into law anyway. That is a habit that needs to be broken - as Tom Parker's opinion implies.