(I have posted this as a comment, but the subject is important enough to deserve a diary.)
The Majority Leader says the Republican Agenda is refocussing for the 96th time on the economy. So let me tell you about what happened in my committee yesterday.
Yesterday, Thursday, the Judiciary Committee heard CACR 28, "providing that the supreme court shall determine the constitutionality of judicial acts and the legislature shall determine the constitutionality of legislative acts." Rep. Sorg, the prime sponsor, reminded us that he has filed the same bill every session he has served. Here is the actual text of the proposed addition to our constitution:
[Art.] 74-a. [Determination of Constitutionality.] To decide upon the legality of claims and conduct made in the course of determining cases in controversy between persons arising under laws previously established is a judicial act. The supreme court shall have final authority on the constitutionality of judicial acts. To make a new general rule of prospective effect for the regulation of new controversies for the general benefit and welfare of the state is a legislative act. The general court shall have final authority on the constitutionality of legislative acts.
This perennial classic has in the past, under Dems and Republicans alike, garnered few votes. The argument is that the US Supreme Court got it wrong sometime around 1802 when Marbury v. Madison affirmed the power of the courts to rule on the constitutionality of the laws. NH apparently got it wrong a few years later with Merrell v. Sherburne, which said the same thing. In any case, proponents of the constitutional amendment argue the legislature ought to have the absolutely final say about whether its own acts are constitutional.
But what about the system of checks and balances? Proponents of this amendment argue they are a myth. Never mind that Part I Article 37 of the NH constitution, in place since 1784, provides for three essential branches of government:
In the government of this state, the three essential powers thereof, to wit, the legislative, executive, and judicial, ought to be kept as separate from, and independent of, each other, as the nature of a free government will admit, or as is consistent with that chain of connection that binds the whole fabric of the constitution in one indissoluble bond of union and amity.
Never mind that the other states and the federal government have all incorporated the system of checks and balances for over 200 years. In New Hampshire, the argument goes, the legislature should reign, well, Supreme.
Here's what is important about what happened in the Judiciary Committee yesterday.
The Speaker of the New Hampshire House, Bill O'Brien, came to the Judiciary Committee and testified in favor of the constitutional amendment. I got to ask the only question he took. I asked what protection there would then be if the legislature enacted a statute that was clearly unconstitutional. The Speaker's one word answer:
"Elections."
I don't know about you, but I am a lot more comfortable knowing that the courts have a check on the unfettered actions of the legislature, no matter who is in charge. This CACR would do away with the courts traditional role of protector of the constitutional rights of the minority from the tyranny of the majority.
So, the focus is to be all on economic and education issues? Pay attention to what is happening when the bright lights are focussed elsewhere. This is a very dangerous piece of legislation. |
