Bill Logan, a sensible fellow, basically says that judges are supposed to make up laws when they see fit. I’ll quote him at length and then refute him — twice!
1. Eric wrote when a judge ceases to rule on points of law and begins to be a law-giver, he has overstepped his authority. I suspect that this is a fairly-widely held sentiment; my problem with it is that it is just so wrong. Judges have always made law. The common law is nothing more than judge-made law. How exactly would you differentiate “ruling on points of law” and “being a law-giver”? Is there any substantive difference other than that the former are actions you approve of and the latter are actions you don’t?
I think you’re confusing a “law,” as in statute, with “law,” as in jurisprudence. Surely you aren’t saying that a law enacted by a legislature is equivalent to a legal precedent? Or that legislatures cannot pass laws that contradict and supersede legal precedents?
Is your tongue in your cheek here? I hope it is, because I would think that the distinction between interpretation and legislation is so clear that it scarcely requires explanation. Christ commanded us to “love our neighbor.” If we interpret that to mean we must shelter our neighbor when his house burns down, are we writing a new commandment? No, it’s an interpretation that naturally flows from the rule.
2. As for the talk of tyranny, give me a break. If this is tyranny, what does that make Saddam Hussein or Kim Jong-Il? Are tyrants just people you disagree with, or is there any real meaning to the term?
Pace Voltaire, let’s start with defining our term. Merriam-Webster defines “tyrant” as
1a. an absolute ruler unrestrained by law or constitution
b. a usurper of sovereignty.
Both senses apply to the judges of Massachusetts. There was no requirement of the state or federal constitution to mandate gay marriage, none whatsoever. The decision was made with vague references to “equal protection” when the clear intent was to mandate a social “reform” the justices felt the state deserved. Thus “unrestrained by law or constitution.”
The people, as you know, are the sovereign under American law: the government is authorized to do certain things on our behalf, but nothing else. The people of Massachusetts did not petition their representatives to redefine marriage, nor did they authorize the formation of courts so the judges might dictate their mores. If they had been consulted, even in their debased condition the Massachusetts citizenry would have soundly rejected gay marriage.
“What does that make Saddam Hussein or Kim Jong-Il?” Really bad tyrants, that’s what. Both of those monsters deserve the noose. Our judicial masters are petty tyrants, and deserve to be punished according to their abuses: they ought to be forcibly thrown from their chambers, departing to second-rate law faculties so they can write their wound-licking, self-pitying memoirs and whine about their mistreatment to bored law students.
All the MA legislators need to do is impeach the justices or perhaps just the chief justice who should have recused herself.
Next step is to limit the jurisdiction of the court to enforce the decision thru injuctions.
We need to disabuse ourselves of the notion of the unconditional sanctity of the courts. Plenty of remedies to judicial tyranny are available to legislators at all levels. This is the concept of checks and balances.
Some remedies include: packing the courts as FDR tried to do, the aggressive use of interim appointments at the federal level, creative use of the legislature’s authority to create special courts and define the jurisdiction of existing courts. Finally, the legislature and governor could simply ignore an unconstitutional mandate of a tyrranical court. After all, these people take oaths to defend the Constitution – not to obey the courts. It is just as difficult to impeach a governor as it is to impeach a chief justice.
For years the Ohio Supreme Court has declared the state funding scheme for education to be unconstitutional. The legislature fiddles endlessly with the funding scheme as they would probably do anyway. In the end the Court gave up trying to enforce its decision.
The sad fact is that the judiciary as a whole is no longer worthy of our respect since they have no respect for the rule of law.
Now that we’re back to rational discourse, we seem to have scared away the lefties that just wanted to bait us into calling them unamerican…
All the MA legislators need to do is impeach the justices or perhaps just the chief justice who should have recused herself.
Ok, two points here:
First, this would require actual spine on the part of the Legislature- and, had they that spine, they would never have handed the issue over to the SJC in the first place.
Second, you have no idea how !@#$%^& hard it is to get any judge impeached; just look at the Maria Lopez scandal. Here was a woman who gave probation to a violent sex offender who had raped a young boy at the point of a sharpened screwdriver. It wasn’t until a video of the judge shouting down the prosecutor’s objections to the sentence was played on the local news that disciplinary action was instituted. Even after being caught red-handed on film, and despite an alleged “whisper campaign” by her husband (the publisher of the Boston Phoenix) to damage the credibility of the victim, she was given a reprimand for her behavior and ordered to appologize.
And you expect this Legislature to screw up the spine to impeach any of the SJC judges?
The bottom line is that the people of MA do not have the spine to elect a legislature with the spine to deal with tyrannical judges.
They lack the spine due to a respect for the judiciary that is no longer warranted.
That’s my point.
Eric, thanks for vouching for my good sense. I’d like to remind everyone else who might read this of my third point, that it’s a GOOD THING for other states to become more like California. Since Eric didn’t mention this, and we all know that silence means consent, I’m sure we can expect to hear great things from the soon-to-be-great state of Virginifornia.
:)
Let me address the point about tyranny first. I entirely disagree that the justices of the Massachusetts Supreme Judidical Court are “absolute ruler[s] unrestrained by law or constitution” or “usurper[s] of sovereignty” (the definition that Eric gives of a “tyrant”). It’s not as if Massachusetts is a democracy according to the African pattern (i.e., one man, one vote, one time). No, the people of Massachusetts can still act according to how they see fit to. They can amend the state constitution if they wish–again it may be difficult and it may take longer than you wish (so amend the state constitution to make it easier), but that doesn’t make the judges tyrants or the state government a tyranny.
If the people of Massachusetts don’t do anything, then they either support the decision or they’ve acquiesced. If this is a culture war, then they’ll have surrendered, in which case they’ll have squandered the legacy of Massachusetts’ colonial patriots for a mess of pottage (too much metaphor mixing, I think). I’m sure that you can think of the unpleasant things that can happen to you if you surrender in wartime.
On an entirely serious note (unlike my initial comment), let me urge more people to push for the adoption in their states of California’s progressive-era reforms, namely the initiative, the referendum, and the recall. Yes, you may think that California is a wacky state, but the fact is that in California, All political power is inherent in the people. Government is instituted for their protection, security, and benefit, and they have the right to alter or reform it when the public good may require. (Cal. Const. art. 2, sec. 1.) Thanks to the initiative, referendum, and recall, California voters have ultimate control over their state government, including the judiciary. Can you say the same about your state?
Now then, you say that there is no requirement of the Massachusetts state constitution to mandate gay marriage. Without even bothering to look at it, I’ll cheerfully concede that the Massachusetts state constitution has no clause which reads “The legislature must allow gays to marry.” On the other hand, does the U.S. Constitution have a clause which reads “Local governments must de-segregate their schools by race”? I’d argue that both statements are plausible interpretations (not legislation) of their respective constitutions. If the people don’t like either interpretation of whichever constitution, they can work for a new one.
Finally, I have absolutely no idea what “JS” is referring to.