PonderIt

Saturday, March 13, 2004

I'm pondering the marriage amendment again. I've told you I don't like the amendment very much. It seems wrong that we should have to amend the constitution to uphold something that is already upheld by laws all over the place and already supported by a large majority of the people.

It seems so frustrating that judges can make law at this level with no simple way to overturn it. Justice O'Connor gave an excellent address at BYU where she discussed the importance of protecting the rights of the minority from the tyranny of the majority. This is an important point and it is the primary thing that is giving me pause with my version of a constitutional amendment.

I'd like to make a radical change. I don't think the framers of the Constitution envisioned a judiciary as powerful as it is. I think that they envisioned that judges would be impeached if they made the sorts of rulings seen in the Massachusettes marriage case. (I realize that was a state and not a federal ruling, but the principle remains.) However, in our current system, case law is every bit as valid as real law. I think it leaves a lot of power in the hands of the judiciary without an effective check by another branch of government. I don't think that is what the framers wanted. The only current check is impeachment and that doesn't address the problem of past decisions.

What if we amended the constitution to allow the legislature, by a 3/4 majority plus the signature of the president (with 4/5 to override a veto) to veto the effect in case law of any court decision. We wouldn't take away the power of the court to decide the individual case before them, but we'd leave open the ability to overrule the precedent they set with a ruling. We let the legislature affect case law as well as written law. They get to do this easily already when a ruling is based on a normal statute. They can just pass a better statute. But when the ruling is [allegedly] based on a constitutional precept they are powerless unless they amend the constitution. That seems extreme for every case.

Is this a wacky idea? Too risky? Does it usurp the rightful role of the judicial branch? I think checks and balances need to be restored. We shouldn't have to amend the constitution to keep the common-sense reading of the law from being overruled by judges. After all, this is a democratic republic. The voice of the people is supposed to decide the issues before us!

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