Columns » John Brummett

When majority is wrong

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Scoffing conservatives call this “making law, instead of interpreting law.”

To be precise, they scoff when a ruling goes against them. Activist courts making law aren't so bad if they're making law you like.

Conservatives need to take all that up with Chief Justice John Marshall of the U.S. Supreme Court. But he's long gone now.

In 1803, he ruled in Marbury v. Madison that a law of Congress was invalid on account of its violating a principle of the U.S. Constitution, even if the principle was one he extrapolated and was not expressly professed.

This established what we call “judicial review.” That's the ability and authority of our courts to say, whoa, there, you people and your legislators have done something that's not legal under this supreme constitutional document as we read it.

So we're going write down on paper that you can't do that. We're going to assert that the real law is a prevailing principle we infer from our constitution. We're going to assert that the way we infer and define that principle is the final and ruling law of the land, valid over what you've put in your little statute.

And you're going to abide by what we write because we're a civilized nation of laws.

For the most part we have behaved in that civilized fashion. Once when we didn't, then-President Eisenhower sent federal troops.

Judicial review has taken us to places the people and their politicians weren't ready or willing to go. Without judicial review, much of this country might still be an apartheid culture.

There was this French writer, de Tocqueville, who came to America in the 19th century to write about the new world's great democratic experiment. He concluded that one of our problems would be this: By having majority rule, we could become subject to the oppressive “tyranny of the majority.”

Man can be wrong, de Tocqueville wrote. So, too, he said, can man be wrong when he's joined with a majority of other men.
As it happens, the courts with their judicial review have balanced that tyranny.

Lately it's been courts that have advanced the legal rights of gay people, just as courts led the way in advancing the rights of black people.

So it came to be last Friday that Pulaski Circuit Judge Chris Piazza issued a two-page ruling. It said the voters of the state had violated their own state constitution last year when they voted by 57 percent to approve a citizen-initiated act to ban adoptions or foster parenting by people living together outside marriage in sexual relationships.

This act was cooked up by Christian conservatives who felt a need to sideswipe shacked-up heterosexuals to better fortify the constitutionality of their real purpose, which was to keep gays and lesbians from ever getting hold of any children.

My practical problem with the initiated act — beyond basic disagreement — was that there isn't any way, save a hyperactive and large force of bedroom police, to know whether two people living together are having sex.

You see, formal cohabitation wasn't the issue in the act. The issue was the sex being had by the cohabitants. And, frankly, the sex we have in our homes with our living partners is hardly anybody else's business.

That's how Piazza saw it. But, of course, he had to establish a constitutional principle, or, in this case, a constitutional principle based on a previous court's establishment of a constitutional principle.

So he cited a case from 2002 in which the Arkansas Supreme Court struck down our state sodomy law, which made homosexual conduct illegal, by saying our state constitution effectively bestowed a right of privacy.

Therefore, Piazza ruled, this initiated act violated that right of privacy by denying a privilege based on conduct that our courts had previously determined to be legally private.

This will all now likely go up to the Arkansas Supreme Court, which will surely cite its own precedent and affirm Piazza's citing of that precedent.

Then the state will be able to address the needs of children by examining prospective adoptive and foster parents on a case-by-case basis taking into account standards grounded in the best interests of the children, but not requiring any bedroom cameras or sex gestapo.

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