Not Gonna Do It, Wouldn't Be Prudent

Being a government of laws, rather than of arbitrary powers wielded by kings, potentates, or other officials, is an ideal that many of us value. Realization of that ideal has proven difficult, however. As a practical matter, we must depend on political competition and a fair measure of self-restraint to ensure that the ideal is continued. Government officials just need to understand that they don't have all the answers, and that they should first govern themselves. The words of Bush 41 (and Dana Carvey), "Not gonna do it; wouldn't be prudent" should be a mantra for these folks.

Political accountability is a wonderful thing to focus a government official's attention. However, the judicial branch is largely immune from this accountability. Once appointed, federal judges enjoy a term that extends “during their good behavior”. At the state level, many judges face some form of plebiscite on a periodic basis, and some even face contested elections, but many of them also enjoy effective protections that insulate them from political pressures. Regarding legal matters based on the state constitution, justices of the state's highest court have considerable latitutude to make policy through the mode of interpretation.

Insulating judges from politics can be a helpful feature, or at least it was intended as such. When a close case is presented involving an unpopular litigant, political pressures might contribute to injustice. A focus on law removed from political pressures protects individual rights from majoritarian abuse. However, the boundary between appropriate protection of established rights ends and activism that works to contradict legislative prerogatives by creating new rights has proven to be highly permeable.

When a judicial pronouncement based on constitutional principles proves repugnant to the people, a constitutional amendment may be the only effective way to change the law. This method of change involves greater political barriers than amending legislation, which can be hard enough. (From this perspective, it is easy to understand why interest groups seek to change the minds of judges instead of going through the hard work of winning elections and, in some cases, amending the constitution to enact their programs. )

If you can do the work to put together supermajority support for a particular constitutional principle, you can effectively overturn or even prevent judicial policymaking through constitutional interpretation. Thus, the people will ultimately get their say, and all will be right with the world. Right?

I wish it were that simple. My smart friend and colleague Ralph Whitten just pointed me towards a very troubling case. In Alaska Civil Liberties Union v. State, 122 P.3d 781 (AK Supreme Court October 27, 2005), the highest court in Alaska ruled that, despite a 1998 state constitutional amendment limiting marriage to its traditional scope of one man and one woman, the state’s denial of benefits to same sex domestic partners violated the state equal protection clause under a minimal scrutiny standard. This decision can only be described as mystifying to anyone who believes in the rule of law ideal, and who opposes activist interpretive approaches.

The people of Alaska now face a serious problem if they want to change this new policy. They could, I suppose, amend their constitution again. “We meant what we said in 1998” should be a sufficient message, but I doubt it will be so simple.

This issue is one which should be left for the people or their elected representatives to address. Short-circuiting that political process through the courts undermines important principles about the locus of political power that go to the heart of a republican form of government (which, by the way, the Constitution guarantees).

Moving political opinion is hard work, which takes time. Politically accountable changes contribute to stability and trust that fosters economic growth and human progress. Rulings like this one move the locus of power away from the people and toward an elite group who is proving to be difficult to constrain. That should concern all of us. After all, most of us have to work hard to pay the taxes to support our ever-expanding government; we can't afford to spend time agitating for constitutional amendments, especially when they may just be ignored.

EAM