'We the People' win one in Massachusetts

Last week the Legislature of Massachusetts voted to allow the people to vote on a constitutional amendment that would ban same-sex "marriage" in that state. In 2003, following a ruling by its Supreme Judicial Court in Goodridge v. Department of Public Health, Massachusetts became the only state in our union to allow marriages between two individuals of the same sex. The Court saw nothing wrong with ordering the law-making branch of the state of Massachusetts to make a new law reflecting their own "politically correct" opinion on same-sex marriage; and sadly, the Legislature did not stand up to the Court and its unlawful power-grab.

It is not the duty of courts or judges to make the law. It is the duty of judges to interpret laws made by the representatives elected by the people – Congress at the national level and legislatures in each state. The execution or enforcement of the law resides with the executive branch in both state and the federal governments.

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This simple concept is called the "separation of powers," and it is a bedrock principle of our constitutional republic at both the state and federal level. Our forefathers understood very well the necessity of dividing the powers between three branches of government. Whenever any one branch encroaches on or interferes with the powers of another branch, a consolidation of powers takes place, a "despotism" our forefathers sought to avoid. As George Washington explained in his Farewell Address to our nation:

The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism. A just estimate of that love of power, and proneness to abuse it, which predominates in the human heart is sufficient to satisfy us of the truth of this position.

Our forefathers knew that, according to the Bible, man was a fallen creature and he would always seek to accumulate power to himself. As Lord Acton correctly observed, "Power corrupts, and absolute power corrupts absolutely." The entire framework of our Constitution was designed to limit the power of any one individual or group of individuals. Thomas Jefferson succinctly captured the idea when he said, "In questions of powers, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution."

When the Supreme Judicial Court of Massachusetts ordered the Legislature of that state to redefine marriage, the Court not only assumed the mantle of "lawmaker," but then brashly gave the Legislature a deadline to carry out its order, or else. This is only one example among many where both state and federal courts have usurped the powers of the other branches of government. State and federal judges have ordered the levying of taxes to improve education. Prison systems, transportation systems and mental health facilities are routinely drawn under the control of courts that impose harsh penalties and fines for failure to conform to their subjective control.

Despite this accumulation of power by the courts, which the chief architect of our Constitution, James Madison, called "the very definition of tyranny," the final authority in a constitutional republic rests not in the courts, but rather in the people. In the case of Massachusetts and same-sex "marriage," the people spoke through a citizen petition that the Legislature initially attempted to thwart by refusing to vote on the measure. In its Dec. 27, 2006, opinion on the matter, the Court ironically called attention to this dereliction of duty, stating that the legislators were "seeking to avoid their lawful obligation" as elected representatives of the people, and that they had demonstrated "indifference" and even "defiance" of their constitutional duties.

Those same accusations aptly describe the Massachusetts high court's decision in Goodridge, an opinion that showed outright indifference and defiance of the court's constitutional duty to faithfully interpret, rather than make, the law. Belatedly the Court did recognize its own limitation of power and declined to order the Legislature to vote on the marriage initiative. But if it had remained within its constitutional boundaries four years ago, this whole fiasco could have been avoided.

Taking a cue from the people of Massachusetts in this case – who refused to accept the Goodridge decision lying down and kept fighting to overturn it – "We the People" must put a stop to courts that rewrite the law according to their own whims, fancies or caprices. According to Thomas Jefferson, we will earn "the endless gratitude of society [by] restraining the judges from usurping legislation." Our republic and our posterity will thank us for the effort.

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