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Defending Congress and the Constitution

Defending Congress and the Constitution by Louis Fisher. University Press of Kansas, 2011, 358 pp.

Which of the three branches of government in the United States has final authority on interpreting the Constitution? Considering separation of powers, which branch is most likely to protect the rights of individuals and secure democracy? In response to such questions, Dr. Louis Fisher, in his government and public policy study entitled Defending Congress and the Constitution, posits two central points. First, all three branches of government are obligated to act independently to support the system of checks and balances; Congress must never defer decisions on constitutional matters to either the executive or judicial branches without first thoroughly considering and investigating all evidence. Second, the public must look to Congress, not the Supreme Court or the president, to protect both the republic and individual rights, because centuries of evidence demonstrate judicial and executive failings to do so.

With a PhD in political science, Fisher serves as a scholar in residence at the Constitution Project with more than 40 years of research experience at the Library of Congress. He has provided expert testimony before Congress upwards of 50 times. At the time of this book’s publication, Dr. Fisher had authored 20 books and more than 400 articles on legal and political issues and has taught at several institutions of higher education.

While Congress continues to obtain significantly low approval ratings, Defending Congress presents many insights into ways it could potentially improve its standing. Primarily, lawmakers should not automatically abdicate their duties by unquestioningly deferring to the president or Supreme Court. This automatic deferring, according to Fisher, is a violation of legislators’ oath of office to support and defend the Constitution; ergo, it is a failure to protect the people who elected them.

Fisher casts a wide net to include historical examples covering federalism, individual rights, religious freedom, budgetary policy, and national security. Regarding the latter, he writes that post–World War II presidents have unconstitutionally gone to war. He cites Korea and Kosovo as the most grievous examples, since presidents at the time of those conflicts completely bypassed legislative approval required by the Constitution, and Congress acceded. Conversely, regarding religious freedom, he references the case Goldman v. Weinberger when Congress protected constitutional rights subsequent to the judiciary’s failure to do so. In this particular case, the author indicates that Congress did fulfill its role by stepping in to override a Supreme Court ruling that denied members of the armed services the right to wear religious items while in uniform.

Fisher concludes his thesis by stating public officials must not simply default to other officials’ actions and judgments and, in this regard, they must ask the following three questions: “On what authority do you act? What evidence do you have? Why is your argument reasonable?” (p. 332). Indeed, wise counsel to heed for all persons obligated by oath to secure the principles of the Constitution.

Defending Congress is thoroughly researched and rich with historical examples that make for informative reading. Overall, the author provides more than satisfactory support for his main tenets. However, the book fell slightly short of expectations in the religious freedom chapter where Fisher wrote: “Conscience and religious opinions are fundamental to human freedom and should not be regulated by any part of government, judicial or nonjudicial” (p. 135). Perhaps he missed an opportunity to support his argument by not discussing the controversial element of the Patient Protection and Affordable Care Act that penalizes business owners who decline to offer birth control as a health plan component. Opponents of the legislation would argue that the birth control dictate conflicts directly with Fisher’s statement regarding religious liberty. Lastly, the author describes disciplinary action he received after writing an article that his employer at the time, the Congressional Research Service, considered nonneutral and an organizational conflict of interest. This lengthy section of the book distracted somewhat from the text’s primary objectives.

Defending Congress and the Constitution offers all who read it a treasure trove of research about our republican form of government and the separation of powers. Historians, political scientists, and others serving in fields of government or law would especially appreciate Dr. Fisher’s subject matter expertise and comprehensive coverage of the issues. Public sector officials in all capacities will discover a useful reference for interpreting and understanding the remarkable complexity of governmental functions and interactions. The work arrives at a propitious time when many of the challenges facing the nation will require effective, yet constitutional, interplay between the branches of government.

Maj Cory L. Baker, USAF, MSC

"The views expressed are those of the author(s) and do not reflect the official policy or position of the US government or the Department of Defense."

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