Sunday, March 28, 2004

Power Derives From The People

I was pretty shocked when the Massachusetts Supreme Court derived whole cloth from nothing in their State's previous history, a "right" of gay people to be married. You can read in places like the Volokh Conspiracy about the very dubious reasoning the Court used to create their ruling, basically buttressing desired outcomes with weak arguments, rather than factually nailing down assertions. Nowhere in Massachusetts' past has there been a history of gay marriage, in fact nowhere in the nation nor in British common law from which American law derived. It only sprang up in the past couple of decades and is even controversial within the gay community. It's almost totally outside of the State's cultural and social experience. But it was slapped down on the people with a declarative "Deal with it."

Of course, outrage immediately blew up. And the people of Massachusetts are fighting back:
Brian Camenker of the Article 8 Alliance - a group of several hundred activists named for the Massachusetts Constitution provision that holds ``the people have a right . . . to cause their public officer to return to private life'' - says a legislative recall makes more sense than constitutional amendments that have been tying the State House in knots.
``It's the intended remedy when justices do not properly interpret the law,'' said Camenker. ``We cannot credibly call ourselves a democracy when our most basic laws can be undone by four unelected, appointed officials.''
Bravo! I hope they succeed, not to punish gays but to punish judges and justices who disconnect from the society in which they serve.

Sometimes, the folks who serve us need that kind of shake-up to be reminded of who is in charge. Judges cloak themselves in an insularity that approaches the way doctors used to demand to be treated. The medical profession was pried open to public scrutiny and a lot of doctors got knocked off a lot of pedestals. Judges are long overdue for precisely this kind of public interaction. Too many judges seem to use the Canons of their profession as a shield to keep the public from challenging their actions. Need I mention Tennessee's famous Judge "No execution on my watch" Nixon? Every single death penalty case that has come before him has been sent back down on technicalities or vague issues that effectively prevent the State from carrying out sentences. He refuses to discuss it and so goes on about his merry way, protected.

Well, no more. At least in Massachusetts.

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