My initial analysis is here.
However, I also wanted to weigh in on the substance of the (much) earlier Hot Air discussion I linked before–which you can find here.
The question presented is, “When, if ever, should the executive branch or legislative branch effectively ‘nullify’ a decision of the judicial branch on a constitutional question?” Specifically, Huckabee suggested Romney should have refused to give effect to the Massachusetts Supreme Court’s ruling on gay marriage when he was governor.
Allahpundit asks, “Where’s the line? If the governor gets to pick and choose which rulings to enforce, we’re forever on the brink of a constitutional crisis.” He also posts a comment which he thinks undermines Huckabee’s position:
“Note that Huckabee’s excuse for soliciting additional taxes — any additional tax schemes; they were all ‘all right by me,’ as he said — was that he was compelled by a state court decision to do so. How come you didn’t just defy the courts yourself, Huck?”
I appreciate Allahpundit’s practical objection to Huck’s argument, which is that it’s a “slippery slope.” And I don’t disagree that taking such action charts a somewhat dangerous course if not done carefully. But there was once a time when each branch of government was equally capable of interpreting constitutional documents (state and federal) and each branch was expected to uphold and defend the constitution by its actions.
To the legislature goes the task of writing laws; to the executive, of enforcement; to the judicial, of application to specific cases or controversies which arise under the law. Now, please tell me, does one of these functions inherently confer upon the corresponding branch a supremacy over the others when it comes to constitutional interpretation? (Relatedly, Allahpundit misfires when he suggests the question is all-or-nothing, such that we’d have to ban [constitutional] judicial review–but judicial review does not equal judicial supremacy.)
Look, as a nation we’ve been dragged down the road to social liberalism by men and women in robes whose stated intentions have been to “evolve” our constitution–and America with it.
I’m not well-versed in Massachusetts law, but if their Supreme Court interpreted the state’s constitution wrongly, then it was within Governor Romney’s power to refuse to give this decision effect. This doesn’t answer the question of whether such an exercise of executive authority was prudent, because a great deal of other factors ought to weigh in (the closeness of the constitutional issue being one). Nevertheless, one shouldn’t shy away from potential conflicts in the balance of government power, as this was anticipated when our system of government was set in place.
But if you want to talk “slippery slopes,” you ought to track the “evolution” of Substantive Due Process rights over the last one hundred years, to include Roe v. Wade and Lawrence v. Texas. Or try the “evolution” of the Eighth Amendment, such that the people cannot even consider punishing child rape with the death penalty.
There are a lot of so-called conservatives out there who don’t seem to mind Lawrence and several other SCOTUS decisions regarding social issues, but these are really libertarians in conservative clothing–although I’m sure some of Hot Air’s readers count themselves libertarians anyhow.
So, pardon Huckabee for taking the conservative stance on this question, and a position more in line with the feelings of rank-and-file conservatives, as well. The last worry we should have at our present moment in American history is that the judiciary would not have enough power, or that some policy-making decisions would return to the people through their duly elected representatives.
For more on political ideology, check out my other page, The Cackalacky Conservative (see especially my posts here, here, and here, but as long as you’re travelin’ in them parts you might as well watch the BBQ song).
Tags: constitution, executive branch, gay marriage, judiciary, Mike Huckabee, Mitt Romney, nullification, separation of powers, Vice President
