July 12, 2006

Whether we be scholars, lawyers, or ordinary folks, all of us fighting on the front of the Culture War that seeks to return the courts to their proper constitutional place have always argued that the battle is not about a particular legal issue but about preserving democracy itself from the grasp of a "subtle corps of sappers and miners [who] can do what open force would not dare to attempt" (Jefferson's words for the judicial "activists" of his day).  

Of course, human nature being what it is, Liberals, the creators of Liberal Judicial Activism and therefore the current reincarnation of Jefferson's "corps of sappers and miners," have long obfuscated the profound issues surrounding the argument over the role of the judiciary by attacking modern Jeffersonians with ugly lies and vile name-calling (decency demands that with no disrespect to others who have been trashed, we recall the name of Robert Bork).  

Fortunately, however, a drama playing right now in Massachusetts ought to make it clear to the 83% of the nation who don't identify themselves as Liberals exactly what denouement Liberals have in mind for American democracy. So, keeping in mind that it is the survival of democracy itself that is the most important issue in this fight (the 83% are divided on virtually all issues but not that one), let's take a look at where things stand even though the play's final acts are yet to be performed.  

As most Americans interested in political theater will recall, Act One ended with the Massachusetts Supreme Court holding in Goodridge v. Department of Pub. Health that homosexual couples have a right to marriage under the state constitution's "due process and equal protection clauses."  

In Act Two, Massachusetts citizens responded to that decision by utilizing their right under the state constitution to petition for an initiative that "would amend the Massachusetts Constitution by providing . . .that "the Commonwealth and its political subdivisions shall define marriage only as the union of one man and one woman." Act Two ended as the state attorney general certified the petition.  

One might think that the action of Act Three would depict the debate and vote in the ensuing constitutional convention. But if one made that mistake, one would have forgotten something that can be carved in stone: Liberals can't stand democracy when it stands in their way. So it is that Act Three took place once again in the Massachusetts Supreme Court, where Liberals challenged the attorney general's certification of the petition, claiming that "the proposed amendment, which seeks to overrule the rule of constitutional law announced in Goodridge . . . constitutes the Ôreversal of a judicial decision' and therefore is excluded from the initiative process by art. 48 [of the state constitution]."  

The arguments for and against the Liberal challenge having been heard, Act Three ended on July 10, 2006, with the Court ruling unanimously that the attorney general properly certified the petition because the "plain meaning" of the state constitution's words and the debates of the Constitutional Convention of 1917-1918 clearly show that the constitution prohibits only an amendment that would overrule a particular judicial decision, for example one that would override a jury's finding of Joe Doe as guilty of murder.  

Emotionally and intellectually exhausted as the lights went up, we welcomed the intermission that followed as we have never welcomed one before. Think of it. In order to prevail at any cost on a "Liberal" issue with minority support among the population, Massachusetts Liberals argued that once the state Supreme Court has ruled on a case, the people of the state are forbidden from changing the law applied in the case, a line of reasoning that would prevent Massachusetts citizens from passing a constitutional amendment that would, for example, overrule a state supreme court decision that the commonwealth's constitution does not guarantee the people the right to free speech, to assemble peacefully, or to hold elections.

But even Massachusetts Liberal judges were not yet prepared (the stress on "not yet") to ignore the "plain meaning" of words fundamental to democracy. Therefore, one might sigh, "Well, at least the people of Massachusetts will get to see Act Four, in which the amendment process plays out." But such a sigh would reveal once again an ignorance of just how much Liberals can't stand democracy when it stands in their way. For proof, consider the testimony of Barbara Anderson, Massachusetts resident and Executive Director of the state's Citizens for Limited Taxation.

Writing in the Providence Journal, Ms. Anderson, who tells us that she doesn't "yet know [her] own position on gay marriage," nevertheless says that she admires the "Vote on Marriage activists who didn't quit," because "They have their 50 votes" (required to have their petition voted on by a constitutional convention) and thus are "legally and morally" entitled to such a vote. However, she worries that the "marriage activists" may be denied that vote because Liberal legislators, as they have done numerous times in the past, may "refuse a fair vote on the issue."

Liberal legislators acting very badly, very wrongly, and typically anti-democratically? Of course. But as Ms. Anderson points out, with respect to similar instances of its refusal to vote on legitimate petitions for constitutional amendments, "The Massachusetts Supreme Judicial Court has ruled that the legislature was wrong, but says it can't make legislators obey the constitution."

With some good news for the activists Ms. Anderson writes that "Senate President Robert Travaglini, chairman of this year's constitutional convention, will allow a vote on the marriage amendment." (Though she also tells us that "House Speaker Sal DiMasi says he will do everything he can to prevent the vote.")  

So, one might be tempted to say that there is a good chance there will be an Act Four in which democracy decides "conclusively" the commonwealth's law regarding marriage. But saying "conclusively" would make one wrong again because the amendment's fate will be conclusive only if the voters defeat it. If it is approved, Liberals will challenge its legality in the state Supreme Court, leading to an Act Five, about whose action Justices John M. Greaney and  Roderick L. Ireland, in their concurrence regarding the decision of July 10, have given a very big fat hint:

There we have it in all its immoral, anti-intellectual, anti-democratic ugliness: The Liberals of the Massachusetts Supreme Court have laid the groundwork to find "unconstitutional" a constitutional amendment approved by (in Washington's words) "an explicit and authentic act of the whole people."

Sadly, however, there will be nothing new about such an act of judicial imperialism, for it would simply continue the tradition carried out by Liberal activist judges for the past half century, most notably and most importantly in the U.S. Supreme Court.

That contemptible anti-democratic tradition explains why so many of us have joined in the battle begun by Jefferson and continued in our time under the leadership of people such as Justices Scalia and Thomas, Judge Robert Bork, and a host of other judges, scholars, lawyers, commentators, and ordinary citizens.

The drama currently being played out in Massachusetts ought to help us increase the number and the intensity of our current forces. It may even (though this may be shooting for the moon) bring fully and enthusiastically into the fold the 40 of 42 Republican Senators who in 1993 voted to approve Radical-Liberal Ruth Bader Ginsburg for a seat on the Supreme Court, one of four hard core Liberals on that Court who want to bring democracy Massachusetts style to a theater near you.

Copyright by A.J. DiCintio

This article was first published by MichNews.com on July 12, 2006, and is reposted here with the kind permission of the author.