Thursday, February 05, 2004
The Limit of the Judiciary UPDATED
Hadley Arkes on Marriage & Civil Unions on National Review Online: "it might be said that the court itself has offered a series of slogans searching for a principle; and yet that may impute too high a reach to Chief Justice Marshall and her colleagues. The judges in the majority were mainly making it clear that they were in charge, and would have nothing less than what they had 'invited' the legislature to produce. Those folks seasoned in the legislature must retain some ordinary reflexes found among ordinary human beings, and if they retain at least some minimal self-respect, this gesture of contempt by the court should be enough to push them over the edge. It is not enough to put off for two years a constitutional amendment. There are things to be done even now. The governor seems to be studying again the lessons taught by Lincoln on the limits of the court and the constitutional responsibilities of the political branches. As Lincoln reminded us, the executive and the legislature could respect the disposition of any case in regard to the litigants, but they may not be obliged to accept the principle articulated by the court. The court might issue injunctions to registrars throughout the state, ordering them to give marriage licenses to people of the same sex.
But the constitution of the state is clear that the laws on marriage belong mainly in the domain of the legislature, and the legislature has the decisive authority to determine the terms on which courts may issue injunctions. Exercising that power in the past, the legislature had diminished the authority of the judges to intervene in labor disputes, and leap in with injunctions to break strikes. By any reckoning, the laws of marriage would be at least as fundamental as the laws on labor and servants. The powers are there to be used. The main question then is whether the legislature of Massachusetts, happily composed as it is of members drawn from both sexes, can summon either the testosterone or the simple nerve to take their responsibility, and to vindicate 'the right of a people to govern itself.'"
The article doesn't mention another historical example of the judiciary being defied: the supreme court ruled that it was unconstitutional for the federal government to displace the Cherokee Indian tribe from their native lands. President Jackson ignored this opinion and did it anyway; this may not have been right, but the President does not have to listen to the supreme court in executive matters, especially if congress agrees with him. The Supreme Court could do nothing; it has no power to issue writs of mandamus, writs that allow it to order others to do things.
Even if it could, though, I think that there is a limit to the judiciaries power to run roughshod over the legislatures ability to create laws. Massachusetts is a good example.
One can say that this will lead to great injustice; however, like all government, moderation and balance is required; no matter how much of it is spelled out explicitly sometimes decisions will have to be made that fill in gaps of the law.
Judicial review is based on a supreme court ruling, and is not explicitly spelled out anywhere in the constitution, and is this way in many states. Our government will simply have to figure out new limits to stop judicial adventureism and dictat and bring representational government back to the people.
UPDATE: Mr. Hewitt has some comments on this:
The New York Times also reports that "Bush Expected to Endorse Amendment on Marriage," a wise and overdue course. Judicial imperialism is offensive on many levels, but the Massachusetts quartet of Caesars in robes is too much to swallow. Nobody elected them to anything involving the fundamental rewrite of the state's laws, and a supermajority of Americans resent being told that all of recorded history and every major denomination currently active on the globe has it wrong when it comes to the proposition that marriage is an institution reserved for a man and a woman. If even one legislature anywhere in the United States had passed a gay marriage act, the case for gay marriage would be on a completely different ground. But not one legislature has passed such a law, reflecting a bedrock belief on the subject that can only be altered by judicial diktat, and this country was not set up to be run by such diktats, but by the public votes of elected representatives. The campaign for a constitutional amendment will not be primarily about gay marriage but about the role of the courts in America, and it is a debate long overdue.
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