Just Say "No"

Weekly Standard ^ | 11/20/2003 | Hugh Hewitt

[ZGuy]

"JOHN MARSHALL has made his decision," Andrew Jackson is said to have remarked in the aftermath of a Supreme Court decision he disliked, "now let him enforce it."

Massachusetts Governor Mitt Romney would be well advised to ponder that line long and hard over the Thanksgiving holidays.

It is an interesting time for the Massachusetts Supreme Court to have seized control of the elected branches in its state, given the connection between Thanksgiving and the Bay State. Unlike its neighbor to the north, the Look-at-Me State of Vermont, Massachusetts actually has a place in the collective national consciousness and Americans of all regions are interested in its history. Now, in the aftermath of Tuesday's radical diktat from four justices to Massachusetts' elected representatives, Americans are interested in the state's future as well.

Romney should seriously consider indifference. The governor noted that the ruling declaring same-sex marriage a mandate of the Massachusetts constitution is contrary to the sweep of recorded history, but it is more than that. The ruling is also absurd in its reasoning and breathtaking in its arrogance.

The state that was birthed in the Mayflower Compact, sparked a revolution against unrepresentative government, embraced abolitionism out of religious zeal, and championed learning and debate has been presented with a lengthy bit of cultural posturing dressed up as a court decision. Like Captain Picard at the controls of the Entreprise, the four justices have waved their collective hand and declared "Make it so."

The legislators and the governor have been given 180 days to change 387 years of Massachusetts history. That history begins around the time of the Compact, with its signatories' promise of "all due submission and obedience" to the "just & equall Lawes, ordinances, Acts, constitutions, & offices," flowing from a "Civill body politick." Of course the nature of that "body politick" has evolved in the four centuries since its launch, but nowhere along the way did it embrace the concept of four philosopher kings delivering commands.

The decision is illegitimate, and the appropriate response will be to ignore it. Some law professors will shudder (though two well know in the blogosphere, Eugene Volokh and Glenn Reynolds did not when the subject was kicked around on my program Tuesday; Volokh in fact thinks such inter-branch confrontations are useful in the life of constitutional republics). Editorial writers will shout. Senator Kennedy may even brand Romney a Neanderthal, as he did Justices Brown, Owen, and Judge Kuhl earlier this month.

But the storm will pass and the people of Massachusetts will applaud. They didn't sign up for a banana republic run by pretenders in robes, and no one in the state's illustrious history ever sacrificed life or limb--from Boston Harbor to Concord, Antietam or the battlefields of Europe and Asia--for the proposition that four judges get to change everything when they decide to conjure up a reason for doing so.

Romney and the legislature ought to stand back and say no. In fact, if the court threatens with penalties, they ought to threaten back. An outrageous overreach is only as strong as the passivity with which it is greeted.

This isn't primarily about gay marriage, and it isn't primarily about Massachusetts. It is primarily about self-government and limiting courts to their constitutional duties. And Massachusetts, again, has a central role to play.

[ZGuy]

Disclaimer - Articles by Hugh are ALWAYS posted by now, but I have searched for this article by title, title words, and various keywords and it hasn't shown up on the list. If it's a dup, it's the FR search engine's fault!

[Ff--150]

"JOHN MARSHALL has made his decision," Andrew Jackson is said to have remarked in the aftermath of a Supreme Court decision he disliked, "now let him enforce it."

Yeah, Andy, but today they got some real, highly-paid firepower....

[Publius]

In fact, if the court threatens with penalties, they ought to threaten back. An outrageous overreach is only as strong as the passivity with which it is greeted.

The most the Massachusetts Supreme Court could do to influence the legislature would be to send the state police to arrest individual legislators. While the court can order the legislature to address an issue, it cannot enforce that decree, nor can it legislate on its own. The Governor of Massachusetts, however, possesses the executive's enforcement authority, and he could simply order the state police to ignore this ruling of the court. The result: impasse.

Once the court was successfully flouted by the governor and legislature, the way would be paved for impeaching the four justices of the state supreme court.

[jimkress]

Excellent article. All Judicial pronouncements should be met with a wall of indifference when the Judiciary attempt to legislate from the bench.

[Jack Black]

Don't the state police report to the Governor, not the court. I've never heard of a city or state where the police report to the judicial branch.

[Publius]

That's what I was saying in my post. I guess I wasn't clear enough.