Different River

”You can never step in the same river twice.” –Heraclitus

July 14, 2006

The Constitution is Constitional (#3)

Filed under: — Different River @ 4:55 pm

Clayton Cramer has an extensive analysis of the decision of the 8th Circuit Court of Appeals, which “ruled that Nebraska’s constitutional amendment, approved by 70% of the voters in November 2000, is not a violation of equal protection.” This overrules a federal district court decision, which I reviewed here.

This is not quite is ridiculous as the Colorado decision or the Georgia decision (overruled), since those decisions held that a state constitutional amendment violated the state constitution, which is clearly preposterous. In the Nebraska case, the ruling was that the state constitutional amendment violated the federal constitution, which is at least possible in theory, though it was a real stretch in this particular case — if the logic of the district court was accepted, it was unconstitutional to prohibit slavery (as I wrote) or to prohibit establishment of religion (as Clayton wrote).

There seems to be a spate of new respect for the right of voters to vote on things. The Tennessee Supreme Court ruled unanimously to allow a vote, and even the Massachusetts Supreme Judicial Court ruled that they don’t have the right to declare constitutional amendments unconstitutional.

However, this ruling was not unanimous, and Eugene Volokh did a pretty good job of skewering the dissenters. The dissenters wrote:

If the initiative is approved by the Legislature and ultimately adopted, there will be time enough, if an appropriate lawsuit is brought, for this court to resolve the question whether our Constitution can be home to provisions that are apparently mutually inconsistent and irreconcilable. We may then give careful consideration, in view of what has been said above, to the legal tenability and implications of embodying a provision into our Constitution that would look so starkly out of place in the Adams Constitution, when compared with the document’s elegantly stated, and constitutionally defined, protections of liberty, equality, tolerance, and the access of all citizens to equal rights and benefits.

Professor Volokh — who would probably oppose the amendment, given his past statements, said:

This strikes me as deeply wrong: The Massachusetts Supreme Judicial Court is saying that its judgments about equality and fairness under the Massachusetts Constitution trump not only the judgment of the legislature, but the judgment of the people amending the constitution itself.

And this, it seems to me, goes to the heart of sovereignty. Judicial review has pluses and minuses, but its premise (which I believe generally justifies it) is that the people have ordained a Constitution as the supreme law of the land. Judges must therefore enforce this supreme law as against any legislative enactments, or even the enactments of the people voting as ordinary legislators. The judges are thus acting as servants of the sovereign people, carrying out the people’s instructions. …

But here the two judges are suggesting that the ultimate decisions are to be made by judges, and the people have no right to the final say on the subject. Under this theory, the judges end up being the ones who are sovereign, with the legal principles that they set forth being immune from control by the people. That, I think, would be a very bad result. Even if one thinks that sometimes judges may use this sovereign power in fairer ways than the people do, the same can be said about dictatorship or monarchy (or even dictatorship or monarchy limited to particular topics). The premise of democracy, including of constitutional liberal democracy, is that the best — not the perfect, and often not even very good (consider Churchill’s famous line about democracy), but the best — place to repose sovereign power is in the people, not in Philosopher-Kings.

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