AP's Misleading "fact check" on the first Iowa GOP Debate

The AP has produced a "fact check" of last night's Iowa GOP Presidential candidate debates that I thought was notable mostly for being a series of uninteresting minor quibbles, but the first item really stands out. It's a pet peeve of mine and really burns me up:

BACHMANN: Spoke of "the unconstitutional individual mandate" several times, a reference to a requirement for people to carry health insurance, a central element of the 2010 federal health care law.

THE FACTS: Nothing is unconstitutional until courts declare it to be so. The constitutionality of the individual mandate has been challenged in lawsuits in a number of states, and federal judges have found in favor and against. The Supreme Court will probably have the final word. But for now, the individual mandate is ahead in the count. And the first ruling by a federal appeals court on the issue, by the 6th U.S. Court of Appeals in June, upheld the individual mandate.

Members of all three branches of government as well as the armed forces take oaths to protect and defend the Constitution. This is not accidental. Nowhere does the Constitution grant the court system the sole power to make Constitutional judgments. Not only does this grant the courts undue power, it strips the legislative and executive branches of their own Constitutional obligations.

It's also deeply undemocratic and anti-intellectual. When President Bush signed the McCain-Feingold campaign finance reform act, he notoriously admitted when signing that he thought parts of the bill were unconstitutional, but decided to leave it to the courts to decide.

Instead of exercising his obligation to use his veto power to protect and defend the Constitution, he ceded his responsibility to another branch of government, burdening the country with an unconstitutional law. Congress had already shirked its responsibility by passing such a clearly unconstitutional law, and the issue is still being fought out in the courts at great cost and great expense, when it was in the President's power and obligation to save us this trouble with a simple exercise of his veto power.

There is a reason not all Constitutional authority is vested in the courts. The Supreme Court is just nine unelected, fallible human beings. By the theory that the AP proposes, Congress and the President can violate the Constitution in the most egregious fashions (they routinely do), but citizens, such as Mrs. Bachman, are not allowed to identify the actions as unconstitutional unless the courts say so?

That's utterly ridiculous and puts us at the mercy of the courts. It is any citizen's right to label a law unconstitutional if she believes it to be so and if the courts do not yet agree with her that does not make her wrong: if we cannot exercise our own judgment as citizens about the nature of our Constitution and act on it in the public sphere, then we are not citizens, but subjects.

It is incumbent upon a candidate for President even moreso than ordinary citizens to clearly and publicly state her views on the Constitutionality of major issues with which she will have to deal as President.

As President her opinion of the Constitutionality of laws carries weight and force with the power of her veto pen and she, as both candidate and President, should not be timid about holding forth on her view of the Constitutionality of various laws of the land, nor should she be timid about vocally disagreeing with the judgment of Congress and the courts -- that tension is deliberately built into our system to protect our Constitution from any one branch of government.

Even if the courts find a law Constitutional or unconstitutional, that does not mean they are right! If that were the case, then we would still be bound by the Supreme Court ruling in Dred Scott. Instead, the unwillingness of a great portion of the public, and of Republicans, to accept the consequences of the ruling led to the abolition of the shameful practice of slavery in the U.S. If the public, President and Congress had simply accepted the primacy of the Supreme Court in this matter, then slavery might logically still be a "Constitutionally" protected practice today.