The School of Law

Loyola University

Chicago, Illinois

July 15, 2011


The Editor

The Chicago Tribune

Barbara Flynn Currie was correct in challenging (on July 14) any assertion that lawmakers have no business determining whether legislation is constitutional or not, that that is something to be left to the courts to decide.

Why, she well asks, do lawmakers take oaths to uphold the Constitution if they are to have no role in determining the constitutionality of the legislation they consider enacting?

Representative Currie could have gone even further by recalling that it had never been the general expectation of the American Founders that judges would routinely pass on the constitutionality of the enactments of their legislatures.

Respectfully yours,

George Anastaplo

Professor of Law

Loyola University of Chicago


This Letter to the Editor was in response to the following letter (published in The Chicago Tribune, July 14, 2011, by Barbara Flynn Currie, Majority Leader, General Assembly, Illinois State Legislature):


Constitution for everyone

            In your July 5 editorial “Rescuing public pensions,” you imply that lawmakers have no business determining whether legislation is constitutional or not; that, you saw, should be left to the courts.

Each branch of government in our representative democracy has the responsibility to decide constitutional issues.

Why do Illinois governors and lawmakers take an oath of office requiring them to uphold “the Constitution of the United States and the state of Illinois” if we have no role to play in determining the constitutionality of our actions?

Governors and presidents have been known to veto legislation on constitutional grounds.

The first example comes from George Washington, who vetoed a bill on apportionment precisely because he believed it was unconstitutional.

While the courts may have the last word, courts have also been known to contradict one another.

The United States Supreme Court, from time to time, has been been known to overrule its own decisions.

I think the voters expect their lawmakers to make sound public policy decisions.

But they also do—and should—expect those lawmakers to respect our constitutions.

State Rep. Barbara Flynn Currie, D-Chicago


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