Baseball Crank
Covering the Front and Back Pages of the Newspaper
January 9, 2006
LAW: Democracy Banned in Boston?

If you thought the Florida Supremes were bad, at least the Florida courts seem to accept the idea that the people are capable of overruling them. But in Massachusetts, gay activists are taking the Left's view of an imperial judiciary to its illogical extreme, arguing that once a court renders a decision, the people are forever barred from self-government on that subject:

Massachusetts Attorney General Thomas Reilly "simply got it wrong" in September when he certified's marriage amendment for a petition drive, said Gary Buseck, legal director of Gay & Lesbian Advocates & Defenders (GLAD), which filed its lawsuit before the Massachusetts Supreme Judicial Court.

Article 48 of the state constitution says citizens cannot use constitutional amendments to reverse judicial decisions. The sole purpose of the marriage amendment, Mr. Buseck said, is to reverse the court's 2003 Goodridge decision, which legalized same-sex "marriage" in Massachusetts.

This is a shockingly broad assertion of judicial supremacy. If the federal constitution was read this way, we'd still be stuck with Dred Scott. Even Massachusetts' Democratic AG says this is nuts:

Citizen petitions have been used since the early 1900s to amend the state constitution "in response to a court decision finding a law unconstitutional," Mr. Reilly wrote. Petitions may not be used to "put a law back into effect" after a court has found it unconstitutional, but citizens are clearly allowed to amend the constitution "going forward," he wrote.

Indeed, if the constitution prohibited amendments to overrule the decisions of an unelected body, not only would it be fundamentally illegitimate under these principles and these, it might well be unconstitutional under the federal constitution, which guarantees each state "a Republican Form of Government," a concept that plainly contemplates that all sovereign power is ultimately answerable to the consent of the governed.

Posted by Baseball Crank at 9:05 AM | Law 2006-08 | Comments (0) | TrackBack (0)
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