Friday, August 05, 2005
Roberts in the Romer case
There has been a mild flurry of commentary in the past couple of days on John Roberts' pro bono work to assist gay rights groups in the Romer v. Evans case. Honestly I do not have much to say about Roberts' involvement and would leave it to my attorney co-bloggers to comment on the specifics of such work. Also, I am somewhere in the middle on the specific case in question. This post addresses the concerns some in the conservative community have about the manner in which the case was overturned.
Listening to Rush Limbaugh yesterday, he seemed to be particularly upset with the decision because it had invalidated a state constitutional amendment ratified by the Colorado electorate. I have heard similar types of complaints when referrenda in California and Arizona were overturned by the Courts. There is a feeling by certain segments of the right that ballot inititiatives and referrenda are somehow sancrosanct, as though they deserve a special layer of protection from judicial interference.
This stance strikes me as manifestly wrong. Plebiscitary ballot initiatives are no more sacred than any ordinary act of legislature. An unconstitutional ballot initiative deserves to be struck down as much as an unconstitutional piece of legislation passed by the people's representatives. There is no special gloss on popular appeals that make them any less prone to unconstitutional decision making.
If New York were to hold a referrenda lowering the minimum age for a person to represent the state in the Senate, I doubt very many if any would be upset if that were overturned. Of course that is a clear-cut example. Perhaps a better one would be a state-wide inititiative to allow private companies to take land for a non-private use. Clearly that would violate the Constitution . . . oh, wait. Nevermind.
Of course the question then turns on whether or not the Colorado inititiative was indeed unconsitutional, and again, that is an issue for another day. Honestly it was not a case I paid particularly close attention to in my con law class. I of course respect states' rights, but not when a state decision clearly violates the federal constitution. But whether it was the legislature of the state or the voters of a state doing the violating should not matter. The Constitution does not allow the people to violate its laws any more than their elected representatives - unless they choose to amend it. Then that's another story.
Listening to Rush Limbaugh yesterday, he seemed to be particularly upset with the decision because it had invalidated a state constitutional amendment ratified by the Colorado electorate. I have heard similar types of complaints when referrenda in California and Arizona were overturned by the Courts. There is a feeling by certain segments of the right that ballot inititiatives and referrenda are somehow sancrosanct, as though they deserve a special layer of protection from judicial interference.
This stance strikes me as manifestly wrong. Plebiscitary ballot initiatives are no more sacred than any ordinary act of legislature. An unconstitutional ballot initiative deserves to be struck down as much as an unconstitutional piece of legislation passed by the people's representatives. There is no special gloss on popular appeals that make them any less prone to unconstitutional decision making.
If New York were to hold a referrenda lowering the minimum age for a person to represent the state in the Senate, I doubt very many if any would be upset if that were overturned. Of course that is a clear-cut example. Perhaps a better one would be a state-wide inititiative to allow private companies to take land for a non-private use. Clearly that would violate the Constitution . . . oh, wait. Nevermind.
Of course the question then turns on whether or not the Colorado inititiative was indeed unconsitutional, and again, that is an issue for another day. Honestly it was not a case I paid particularly close attention to in my con law class. I of course respect states' rights, but not when a state decision clearly violates the federal constitution. But whether it was the legislature of the state or the voters of a state doing the violating should not matter. The Constitution does not allow the people to violate its laws any more than their elected representatives - unless they choose to amend it. Then that's another story.
# posted by Paul Zummo : 2:26 PM
