This seems like a good topic, in light of the recent New Jersey Supreme Court decision “ordering” the state legislature to come up with some form of civil union for homosexuals.
Any good high school student can recite the supposed checks and balances on the federal judiciary, provided for in our Constitution:
- Senate approves federal judges
- Impeachment power (House)
- Trial of impeachments (Senate)
- Power to initiate constitutional amendments
- Power to set courts inferior to the Supreme Court
- Power to set jurisdiction of courts
- Power to alter the size of the Supreme Court
- Power to appoint judges (Executive)
- Pardon power (Executive)
As we say in the engineering field, this looks good in the shower, but has failed in the real world. The appointment of federal judges has become ridiculously political; judges hardly ever get impeached anymore (possibly in reaction to the overuse of this provision in the past); since the true feelings of the populace have been rendered moot via political correctness, it seems unlikely that there will be more constitutional amendments anytime soon; and the rest of the provisions really don’t matter anyway.
I have tried, unsuccessfully, to find some basis as to just how a court can order a legislature to create a law. When you think about it, that is about as contrary to a balance of powers as it can get.
Here’s a hypothetical. Suppose Gov. Corzine were to say, “Sorry, the state of New Jersey will not comply with this order. Then what?
Does the attorney general of New Jersey indict the governor? But, what law did he break, since the court cannot make a law? Did he violate a court order? Can’t he appeal the court order? But, to what tribunal would he appeal it? To the US Supreme Court, perhaps?
Suppose the US Supreme Court finds for the New Jersey court. Now, they would have to enforce their decision. Except, enforcement is the role of the Executive branch. Would the FBI be called in to arrest Corzine? Would Corzine direct the New Jersey state police to protect him? Would the state police have a shoot-out with the FBI?
If things were to go this far, maybe the state police would be federalized by some presidential executive order, and, assuming that they complied, the crisis would be over. Not that this would matter in the least…
At some point, some state will legalize gay marriage, and then, via another tortuous reading of the 14th amendment’s equal protection clause (à la Roe v. Wade), given a favorable US Supreme Court and a suitable test case, it will become the law of the land. While this short essay is not the place for a detailed discussion of the 14th amendment, a few points should be emphasized.
First of all, the idea that the mere existence of this amendment would protect the rights of freed slaves in the South, or even the North for that matter, is preposterous, unless you actually believe that Blacks did not suffer discrimination after 1868. Was it all just for show? Beyond that, the amendment was proposed by a Congress that excluded most of the former Confederate states, and there is absolutely no doubt that if they were present, the amendment would not have even emerged beyond the proposal stage.
Furthermore, its passage clearly violates Article V of the Constitution, since those states were not counted during the drafting (legislative) stage, but were counted during ratification, and many were coerced into ratification to gain entry back into the union.
In other words, as was stated in a much later case [Dyett v. Turner, 439 P.2d 266 (Utah 1968)]–
How can it be conceived in the minds of anyone that a combination of powerful states can by force of arms deny another state a right to have representation in Congress until it has ratified an amendment which its people oppose?
Thus, we have the amazing conclusion that ratification of the 14th amendment would have violated the 14th amendment!
Constitutional law isn’t popularly abbreviated as “con” law for nothing.