We’ve all seen it at the theater: some guy laughs when the action or dialog is serious; or gets all serious when he should be laughing. It shows that he doesn’t comprehend what’s really going on.
State legislatures have become something like that. Evidently they are full of people who don’t know they should be laughing, not pulling a serious face, after some court decisions are handed down in their state.
In 2003, the Massachusetts Supreme Judicial Court started the slide toward what is laughably called “same-sex marriage” when they found a state law restricting marriage to male-female couples “unconstitutional.” They then “ordered” the Legislature to legalize same-sex marriage within 180 days. Bay State legislators should have been cracking up over this on several accounts, but they apparently took it seriously.
“What’s so funny about that?” asked Al (of Al’s Coffee Shop). “You can’t laugh at the State Supreme Court. It just isn’t done.”
Look at it this way, I reply. First, there’s the small matter of 225 years. Suppose you and your forebears have been inspectors of a building for the past 225 years. Only recently do you “notice” that something fundamental in the building has been defective for all that time. So you present the owners with a condemnation order and a deadline of 180 days to make repairs. Moreover, you do all this without any visible embarrassment for 225 years of failure to detect the problem.
Will the building’s owners be happy that it took you (and your ancestors) two centuries to see the defect? And what’s with the short deadline? After all, if it took this long to notice the problem, can’t it wait more than 180 days to be fixed?
Then there’s the question of whether something that wasn’t noticeably defective for all that time is a defect at all. If the building hasn’t collapsed in 225 years, is there really a problem?
Surely that question applies to marriage. Societies have operated effectively for millenniaunder a universal construct of marriage as a physical and legal union of one man and one woman. Tacit recognition that other kinds of sexual arrangements exist has not disturbed this basic pillar of our civilization. (Some societies did try marriages of one man with several women, but too many of those men ended up in the nuthouse.) Suddenly, though, four unelected state judges have decided that this societal pillar is defective. Are you kidding me?
Is it credible that all those societies and civilizations were wrong, while Massachusetts is the first society to discover that this is a problem needing repair? Isn’t this like believing that all the cars on a highway are headed the wrong way, while your car, driving against oncoming traffic, is the only one that’s right? The technicality that such a ruling can legally be made pales next to the overwhelming weight of history. We can all enjoy a good joke, but no one should be kidding about these things.
A republic – the political form of every state, as well as our federal government – operates under what amounts to a compact between the People and those we elect to govern us. Under the compact’s terms our governing officials – i.e., legislators, governors and judges – implicitly promise to be serious people and make wise and intelligent decisions. In exchange, the People promise to uphold good order by obeying and following those decisions.
That compact has survived occasional miscalculations and mistakes by governing elements without coming unraveled. But there is some reasonable doubt that it can survive willful foolishness, since it has never before been so tested. An attempt by a state’s high court to redefine marriage falls in the same category as a ruling announcing the repeal of gravity: it doesn’t pass the “laugh” test. Once this was a recognized jurisprudential proof – often applied by the judges themselves.
The people of Massachusetts might now wonder if a court which dispenses foolishness under the rubric of judicial rulings might next decide – in the interest of “fairness” – that people aged 45 should be able to “retire” on public pensions; or that the age of consent should be 10. “In other words,” I ask Al, “what’s next?”
Legislators in Massachusetts should fully understand the “foolishness limitation” on the governing compact. They should have ignored the Court’s gay marriage decision, or prepared legislation to overturn it. Instead – like the movie-goer who gets serious when he should be laughing – they took the court’s edict seriously. They have the power to overturn such decisions, but most members seem to have snoozed through the 9th grade Civics-lesson on Separation of Powers. Their state constitution empowers them to declare the “definition of marriage” out of bounds to their state courts.
Massachusetts legislators should have given a hearty Bronx Cheer to their Supreme Judicial Court’s “deadline” for reordering the universe to align with the nuptial visions of their Robed Eminences. Both legislators and judges should also re-read both their State Constitution and the US Constitution. (And while they’re at it, legislators might be wise to specify that the courts may not rename the days of the week, may not shorten the year to 8 months, and cannot rule that brunettes must have the same amount of fun as blondes.)
The U. S. Constitution – the model for all state constitutions – does not empower the Supreme Court (or any other court) to “order” either the Executive or Legislative Branch to do anything. Yawning and buffing their nails – even making rude noises with their armpits – are appropriate responses from those branches whenever the courts intrude on their turf.
Specific powers of the branches of government over the others are these:
- Supreme Court review of legislation to determine its Constitutionality;
- Legislative restriction of the Court’s appellate review jurisdiction;
- Senate confirmation (or refusal) of Presidential appointments;
- Senate ratification (or rejection) of treaties signed by the President;
- Impeachment of any public officials by the House of Representatives;
- Senate conviction and removal from office of impeached officials;
- Presidential signing of legislation into law;
- Presidential veto of legislation;
- Legislative overturn of a presidential veto;
- Presidential pardon-power.
Cross-branch intrusions have sometimes caused Constitutional crises. In 1868, the Radical Republican Congress impeached President Johnson when he “disobeyed” the Tenure of Office Act – designed by Congress to restrict his ability to remove members of former President Lincoln’s cabinet. He avoided conviction (and removal from office) by a single vote. After the dust had cleared, the Supreme Court ruled the Act unconstitutional. (Admirable restraint.)
In 2006 the FBI raided the Rayburn Building office of Rep. William Jefferson (D-LA), who was suspected of corruption. After Speaker Dennis Hastert objected, citing the Separation of Powers doctrine, the Bush-43 White House backed off and agreed to return any materials that had been seized from the Congressman’s office. (Rep. Jefferson was eventually convicted of bribery and sentenced to 13 years in prison.)
Other attempts by one branch to control another have been unsuccessful and/or controversial. The Independent Counsel Act was a notable example of Congress trying to control the Executive. A Democrat-controlled Congress passed it when the president was a Republican. But after a Democrat President (Bill Clinton) endured a Republican Congress’s Special Prosecutor, the Act was pronounced “unworkable” and allowed to lapse.
In late 1998 the House of Representatives impeached President Clinton on charges that he had perjured himself before a Grand Jury and obstructed justice in Paula Jones’ sexual harassment lawsuit. Although the process was constitutionally legitimate, and the charges demonstrably true, the Senate declined to convict Mr. Clinton. Some Senators said removing the President would harm the country, even though they considered him culpable.
Congress has generally declined to exercise its power to restrict the Supreme Court’s appellate review jurisdiction, although many calls for such action have been issued during the “judicial activism” era (1940-present). And the US Supreme Court has avoided giving “orders” to either the Congress or the President since it has no authority to do so.
These days state courts have become bolder about ordering state legislatures around, and so far they’re getting away with it. But they shouldn’t be. State supreme courts have no power to order a legislature to act (or not act), except with respect to their legislation-review role. Massachusetts legislators should have ignored the court’s “orders” in the gay marriage case, instead of pretending that they had no choice but to do its bidding.
Some legislators obviously enjoy having the courts “order” things they favor but would be afraid to enact in front of God and everybody. They can claim that the courts have taken matters “out of their hands,” and large numbers of ignorant citizens will believe them. Makes a nice cover.
One can’t help suspecting that this cover-motive was operative for the Massachusetts Legislature in the gay marriage case. The court’s ruling permitted legislators to posture against gay marriage – polls showed that 70% of the public opposed it – while piously claiming they were “just following orders” by legalizing it. (The “judge-made-me-do-it.”)
But “powers” (in the governmental sense) are something like pathways through your property. Exercise establishes the right. Under English Common Law, if people regularly use a path across your property, you must block it once a year – else the public will gain the legal right to use that path in perpetuity.
Just so, legislatures that keep taking orders from the courts will establish the courts’ “right” to boss them around. Eventually, though, some issue might arise that will make them wish they hadn’t allowed that judicial “pathway” to get so well-established. By then the courts will be so accustomed to seeing the legislature jump on command that getting them weaned off that expectation will be tough. If state legislators take timely action, they might prevent a real constitutional brawl later.
Those power-separations are important. They protect the integrity of the states and of the Republic, as well as the rights of the People. They should not be sacrificed, trivially, so controversial issues can be “enacted” by the courts without the messiness of fighting real legislation through the legislature.
Passage of new law is difficult. It was meant to be. It was supposed to be possible only if the people countenanced it. Today, that concept seems almost radical, so accustomed are we to seeing the courts deconstruct our laws and “order” new ones that we don’t want.
In the Trump era, state court judicial activism has taken a radical new turn. Rulings on a sitting president’s actions are made to block him. During Mr. Trump’s first term the Supreme Court repeatedly struck down such state-court rulings, but Mr. Trump’s enemies liked the way those court actions bogged down the president’s agenda by occupying his attention.
You don’t have to be a Constitutional juris doctor to see that our republic was not designed to operate in this slapdash way. If we keep doing this, how long will it be before presidential directives to the military are challenged in court and reviewed by judges who have never handled a weapon and who think that bazooka is a bubble-gum? We simply can’t go on like this. If we don’t stop, our whole government structure will come apart at the seams.
Mr. Trump’s political opponents knew all this, of course. But they seemed willing to see the collapse of coherent governance if it would discredit Mr. Trump and get him evicted. It was essentially a “soft coup” to remove their hated nemesis.
After Mr. Trump took office, impeachment got enthusiastic support from TV Talking Heads. House Democrats did impeach Mr. Trump twice on flimsy charges, but the Senate failed to convict him. Those failures generated wild new talk of indicting the president and trying him in civilian court for obstruction of justice or some other charge. Deep-Staters’ cannabis-dreams had The Donald being “frog-marched” out of the White House and into the Big House.
Wow! What lower court judge wouldn’t jump at the once-in-a-lifetime chance to preside over a trial of a sitting president? It would be a starring role – a kind of judicial “rapture.” Leftists would be thanking the Great Whoever for letting us see such a day!
Eventually, though, the Supreme Court told the hardcore commie-leftist wing of the never-Trumpers that a sitting president is untouchable by outside courts. But they redoubled their efforts to destroy Mr. Trump in the state courts, after he left office.
Several state courts prosecuted Mr. Trump, with the objective of preventing him from reaching the presidency again. They failed to achieve that objective, of course, but a New York court did manage to smear the new president-elect, just days before his second inauguration, by convicting him on 34 “felonies” which had harmed no identifiable victim, and on which the statute of limitations had expired.
The lower courts deserve censure for hearing lawfare cases which lack merit. Somehow, they must be persuaded to stop doing this. I’m not sure how to make that happen, but a summit between the president, the leaders of both houses of Congress, and the Chief Justice of the Supreme Court might be a good place to start.
The Founders saw courts as Guardians of the Constitution – a layer of safety placed above the expected radicality of elected legislatures. But today, with some state courts radicalized and raining foolishness down on society, the role of guarding both the Constitution and our Civilization has fallen, by default, to Congress and the US Supreme Court. Unless these judicial usurpations of power are reined in, our laws, our culture, and our self-governance may be damaged beyond repair.
As we saw in the Biden presidency, Democrats favor restoration of good order, once one of their own is in office. But we all need to stop looking at things of this importance through partisan lenses. Unless we want our federal system to become a madhouse run by the inmates, we need to get together and get cracking on this, without delay.
