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Flap Over the Pledge of Allegiance

September 03, 1988

Dukakis defended his Pledge of Allegiance veto by claiming that an executive has a duty to veto a bill if current judicial doctrine indicates that the bill is unconstitutional. He says that Bush is unfit to be president if he is unwilling to kowtow to the judiciary. He is dead wrong.

Executive officers must obey the orders of courts in individual cases, of course. That is what it means to uphold and enforce the laws. That does not mean that the chief executive must passively submit to the judiciary's opinions on constitutionality when making his own discretionary decision to sign or veto a bill. Constitutional doctrine changes. What courts say is unconstitutional today may be perfectly permissible tomorrow. Legislators and executives must make their own determinations of what the Constitution permits and act accordingly.

Suppose Dukakis had been a chief executive in 1920. Would he have vetoed laws fixing maximum working hours? Establishing a minimum wage? Prohibiting national monopolies in manufacturing? Stopping the interstate shipment of the products of child labor? All of these laws were considered unconstitutional at the time but are perfectly permissible now.

Constitutional doctrine can only change when people have the courage to challenge it. Dukakis cannot pass the buck to the courts. If he does not have the intestinal fortitude to take that responsibility, then he is the one who is unfit for the presidency.

KENT S. SHEIDEGGER

Sacramento

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