Seeking A Balance Of Power

It started in 1803 when, for the first time, the U.S. Supreme Court ruled an act of Congress was unconstitutional and, therefore, invalid.

That ruling, known as Marbury vs. Madison, established the judiciary as the final voice on questions of constitutionality. Does that special role square with the idea of three equal, separate and independent branches of government?

Not according to Washington state Rep. Kathy Lambert, R-Redmond. Too many judges try to legislate from the bench rather than just interpret the laws that the Legislature has passed, she says. So she has introduced House Bill 2060, which would turn the tables on the courts.

Under her plan, if a state appellate court held a law unconstitutional, that ruling would apply to the case at hand. But if the Legislature voted to reaffirm the law, the court’s ruling would not apply in other instances.

The short title of HB2060 describes its purpose as “restoring the balance of powers between the branches of government.”

Actually, Lambert said, her proposal would make the people the final arbiters because a legislative action to overrule the courts would be subject to public referendum.

Is that comforting? Are the people at large, prone as they occasionally are to mob fever, the best judges of constitutionality? What protection does that afford the civil rights of minorities?

In answer, Lambert notes it was the U.S. Supreme Court that issued the Dred Scott decision upholding slavery as a property right. That ruling, coming 54 years after Marbury vs. Madison, was the second time the Supreme Court overturned an act of Congress.

No other state has a law like HB2060, and if it is enacted, the courts probably will find it unconstitutional, setting up an intriguing showdown.

Although Lambert insists she’s serious about wanting to pass the bill, Rep. Larry Sheahan, R-Rosalia, talks more about “starting the discussion” about judicial activism. Sheahan is chairman of the House Law and Justice Committee which has scheduled a hearing on the bill Tuesday evening.

So let’s start a discussion. What about this idea? Should judges, lawmakers or the people decide what is constitutional? Or is a final decision even needed?

Would such a law make it too easy, in effect, to amend the constitution?

What impact might it have on social justice?

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