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Impeachment, the unused check

By Robert S. Sargent Jr.
web posted December 15, 2003

It may…be observed that the supposed danger of judiciary encroachments on the legislative authority…is in reality a phantom. -- Alexander Hamilton, Federalist #81.

Yeah, right! Just check out the recent Goodridge v Department of Health. This is the case where the Massachusetts Supreme Court decided that not permitting same-sex marriage violates the Massachusetts Constitution.

First of all, the Massachusetts Constitution says, "…full power and authority are hereby given and granted to the said general court [in New Hampshire and Massachusetts, "general court" means legislature]…to make, ordain, and establish all manner of wholesome and reasonable orders, laws, statutes, and ordinances…as they shall judge to be for the good and welfare of this Commonwealth." It says "full power," and it gives the legislature full power to decide what's "reasonable," and they shall be the ones who shall be the judges of what's good for the Commonwealth. It does not give any power to the judiciary to decide what's "good," nor does it give any power to the judiciary to legislate.

No matter. Supreme Court Justice Margaret Marshall took it upon herself, with the concurrence of three other Justices, to decide what is "fair," and decided that Massachusetts law is not fair to homosexuals "in light of evolving constitutional standards," and gave the Legislature 180 days "…to take such action as it may deem appropriate in light of this opinion."

Marshall even admits that "Certainly our decision today marks a significant change in the definition of marriage." Four Justices have changed the meaning of a statute, decided what's good for the Commonwealth, and ordered the legislature to pass a law that conforms to their ruling.

How can judges just arbitrarily ignore the Constitution's mandate (as Hamilton wrote in Federalist #78) that "[The judiciary] may truly be said to have neither Force nor Will, but merely judgment?" The truth is, there is no check on this branch. Originally, the Framers thought that the threat of impeachment would provide a powerful check. (The Massachusetts Constitution provides for impeachment. See Chapter I, Section II, article 8; Chapter I, Section III, article 6; and Chapter III, article I.) Hamilton wrote in Federalist #81, "There never can be danger that the judges…would hazard the united resentment of the body entrusted with [legislative authority]…while this body was possessed of the means of punishing their presumption…." Alas, the Founders never contemplated that partisan politics would be a stronger incentive for inaction than any feeling of unity within the legislature.

Raoul Berger, in his Government by Judiciary wrote: "…the Founders regarded ‘usurpation' or subversion of the Constitution as the most heinous of impeachable offenses." Clearly, redefining a statute, changing the meaning of the Constitution, and ordering the legislature to write a law conforming to their idea of what the law should be, is "usurpation." To those critics of Goodridge, instead of offering the solution of amending the Constitution, they should contemplate impeachment. The Massachusetts Legislature should tell the Court, "We will not write legislation that your committee of four people demands. We represent the people. If you order us to write such legislation, we will impeach you. If the people of this Commonwealth desire a change, they can elect legislatures that will do so, after all, we are accountable to the people. You are not."

As Senior Editor of ESR James Antle III pointed out in his November 24 analysis of Goodridge, the process is more important than the results. The tragedy of such rulings as Goodridge is not the outcome, (if the people of Massachusetts want same-sex marriage, that's their business) but the abandonment of any pretence of the rule of law. The Constitution should be a higher principle than partisan agendas and even if judicial rulings are agreeable, legislatures should be jealous of the powers given them. One use of impeachment by a legislature would provide a dramatic and salutary check on the arrogant flouting of law by judges.

Robert S. Sargent, Jr. is a senior writer with Enter Stage Right.

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