Santorum vs. Maddow: Can Congress Override The Supreme Court?

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Republican presidential candidate and former Pennsylvania senator Rick Santorum bravely appeared on MSNBC's Rachel Maddow Show on Wednesday night. Santorum and Maddow engaged in a fascinating debate about whether or not the Congress could over-ride the Supreme Court's decision on gay marriage. Is it a flaw in the Constitution that there is no "check" on the Supreme Court? What if they amended the Constitution, could they legislate away gay marriage?

RICK SANTORUM, JULY 10: Is it the law of the land that the Supreme Court has the final say on anything. They do not have the final say on anything. The American people have the final say on everything. Is that the country you live in?

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MADDOW: Republican presidential candidate Rick Santorum at the National Right to Life Convention last month speaking to a very excited, hyped crowd about the latest Supreme Court rulings on --

SANTORUM: Is that the country you live in? That the American people have the final say? Of course, it is, right?

MADDOW: Well, the Supreme Court is the supreme -- I mean, it is the Supreme Court.

SANTORUM: Yes. But it’s not a superior branch of government. I mean, if the Congress comes back and says, you know, we disagree with you and were able to pass a law and get it signed by the president and say, courts, you’re wrong, I mean --

MADDOW: You could not pass a law that could contradict the constitutional ruling of he Supreme Court.

SANTORUM: Why not? Why?

MADDOW: You can amend the Constitution.

SANTORUM: Why?

MADDOW: They're ruling on the constitutionality of that law.

SANTORUM: What if they're doing it with an -- from an unconstitutional basis? I mean --

MADDOW: They decide what's constitutional. That’s how our government works.

SANTORUM: No, no, that's not necessarily true. The Congress has the right.

When I took my oath of office as a United States senator, what did I say? I would uphold the Constitution.

And my feeling is, and I think it’s clearly from our founding documents, that the Congress has a right to say what's constitutional. The president has a right to say what's constitutional. And that's part of the dynamic called checks and balances.

MADDOW: Yes. But -- I mean, you're fundamentally wrong on civics, right? If there is, if there is a question as to the constitutionality of a law, it gets adjudicated.

SANTORUM: Right.

MADDOW: And the second syllable of that word means it get decided in the judiciary, the Supreme Court decides whether or not a law is constitutional. So, you could not now pass a law --

SANTORUM: But if they have --

MADDOW: -- that said we’re banning same sex marriage.

SANTORUM: I’ll give you an example. The partial birth abortion statute, which sort of has come to light because of the Planned Parenthood tape, which they obviously used partial birth abortion to deliver some of these babies. The Supreme Court said it was un --

MADDOW: The Planned Parenthood stuff is --

SANTORUM: The Supreme Court said it was unconstitutional. What did as a member of Congress is we passed a law outlawing partial-birth abortion again, and we said to the Supreme Court, you’re wrong. And we actually listed the reasons why we thought the court was wrong. We made a minor -- and I mean really minor change in the bill. Senate passed it. President Bush signed it and -- guess what? The Supreme Court reversed itself.

MADDOW: But you're not talking about changing the constitutional basis on which the Supreme Court decides something. The Supreme Court decides whether or not something is constitutional.

SANTORUM: The Congress could you say we disagree with that.

MADDOW: Yes. And you’ll -- and if you do it in a way that contradicts the Supreme Court, the Supreme Court wins on the issue of constitutionality.

Let’s get on the issue of Supreme Court -- of same sex marriage, which is what this was about. Do you believe Congress could just pass a national ban on same-sex marriage and would it become law?

SANTORUM: Well, of course. The Congress could pass anything it wants to pass. Just because the Supreme Court said, well, we don’t think this is right doesn't limit the Congress' -- doesn’t limit the Congress’ ability to pass any law. The Congresses are right to pass whatever they want. The Supreme Court can strike it down again.

MADDOW: Yes.

SANTORUM: But the Congress has a right to pass it and a right to say to the court, you're wrong. I mean, when we are --

MADDOW: Would you want them to pass a moot bill that would just --

SANTORUM: It wouldn’t be moot. You never know what the Supreme Court is going to do. Maybe if you -- maybe between the time, and this is, I think could be the case here. Maybe between the time they decided that decision and Congress acted, things could have happened and they could have misread the tea leaves that are going on in America right now, because I think what was going on with this court is what Justice Kennedy was saying. You know, we sort of see this definition of liberty is whatever we want it to be. And this is sort of where the culture is going right now and so this is what we're going to do.

He didn't tie to it any constitutional basis. There’s no precedent that set -- that gives him the ability to create this new right in the Constitution. And so, if it’s created on a whole cloth, it can be re-created in a different way out of whole cloth. And I think that's the role of the Congress is to pressure the court to get it right.

MADDOW: So, do you mean that you would want different justices in the Supreme Court? You would want this to go back to the same justices and you think you get a different --

SANTORUM: What I would like to see as president, a whole new group of justices. If you have a new group of justices, I think you might very well get a different decision.

MADDOW: Can I ask you if you believe people clues to be gay?

SANTORUM: You know, I’ve never answered that question because I don't really know the answer to that question.

But I suspect that there's all sorts of reasons that people end up the way they are. And I'll sort of leave it at that.

MADDOW: But it matters in terms of whether or not -- I mean, legally, in terms of the types of things that we're describing here, in terms of whether or not the Congress should challenge the Supreme Court on these issues. I mean, if it’s an immutable characteristic.

You don't know if it’s an immutable?

SANTORUM: I don't know. If it is, that leads to other situations. I mean, you know, we have, for example, allowed in the law of the land, we have sex selection abortion. So, you can determine whether one of your children is gay, should we pass a law saying you can't abort a child because you find out that child is going to be gay? You can't abort a child because you found out that child is a woman? I mean, those -- how would you feel about a law like that?

MADDOW: I mean, whatever is on your slippery slope, you --

SANTORUM: But how would you feel about a law like that? If, in fact, you could identify a gene that’s, you know, obviously, there’s genes that make you a male or a female, you could identify a gene that made a gay or lesbian.

MADDOW: But you're worrying about the consequences of this without saying that you know whether or not it’s true.

SANTORUM: Because I don't.

MADDOW: OK. So, do you think that some people choose to be gay?

SANTORUM: There are people who are alive today who identified themselves as gay and lesbian and who no longer are. That’s true. I do know -- I’ve met people in that case.

So, I guess maybe in that case, may be they did.

MADDOW: Do you think people choose to -- people can choose to be heterosexual? You chose --

SANTORUM: All I’m saying, I do know people who have lived a gay lifestyle and no longer live it.

MADDOW: Do you believe it can be orchestrated? Like you can make a person --

(CROSSTALK)

SANTORUM: Again, I don't spend a whole lot of time thinking about these things to be very honest.

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