When the now notorious case of Hamdan v. Rumsfeld was handed down earlier this summer, there were many on the Left who heralded the ruling as a vindication of our essential constitutional order.  Many a self-subscribing free-thinker waxed eloquent about our forefathers, a group whose mention is often the subject of much dispute (especially when it appears in an opinion by Scalia or Thomas).  The proffered justification for this righteous indignation, we were assured, was not mere vitriol against the current Administration, but truly a strict devotion to the crucial doctrine of “Separation of Powers.”  It is thus with great wonder that I note that not one of those “patriots” are similarly concerned about the recent decision of the New Jersey Supreme Court.  In that decision, released on October 25, 2006, that Court ordered, “[that] the Legislature must either amend the marriage statutes or enact an appropriate statutory structure within 180 days of the date of this decision.” Slip Op. at 65-66. 

A careful reading of the opinion exposes other insincerities (such as granting de-facto gay marriage, so long as no one calls it ‘marriage’), but the one that strikes me as the egg on the face of We the People is the shameless abuse rendered against the Separation of Powers Doctrine.  The hair-splitting solution required by the Court’s convoluted ruling gives the people of New Jersey a Hobson’s choice: 

“The State can fulfill that constitutional requirement in one of two ways. It can either amend the marriage statutes to include same-sex couples or enact a parallel statutory structure by another name, in which same-sex couples would not only enjoy the rights and benefits, but also bear the burdens and obligations of civil marriage.”

Slip Op. at 65. 

This judicial mandate compels the people’s branch of government—the legislative branch—to enact legislation, to choose between two mandatory alternatives.  There is no third option, and inaction clearly will not suffice.  This seems a little forward for the “least dangerous” branch, the one which our newly-forgotten friend Publius assured us would never endanger “the general liberty of the people…so long as the judiciary remains truly distinct from both the legislative and the executive” functions.  The Federalist No. 78. 

The concept of judicial review involves considering two sources of law, one superior and one inferior, and determining whether there is a conflict between them.  Marbury v. Madison, 5 U.S. 137 (1803).  Where a conflict is found, the function of a court is to establish the scope of the conflict, and to show how and why the inferior law must abate.  Judicial review does not contemplate enacting legislation on behalf of the legislature, nor is it compatible with a court dictating to a legislature the specific contents of laws the court might desire.  Judicial review as a practice is destructive, not constructive.  When a court proposes a particular political expedient, as seen in New Jersey, it has crossed the line from interpreting the law as the judicial branch, to promulgating the law, the rightful province of which belongs solely to the legislature. 

Oddly enough, the Supreme Court of New Jersey is clearly not ignorant of the doctrine of Separation of Powers:  “The doctrine…has not only been accepted as a cardinal principle of American constitutional law but has been relied upon from our earliest days as a nation as a fundamental and indispensable bulwark against despotism.”  Mulhearn v. Federal Shipbuilding & Dry Dock Co., , 2 N.J. 356, 365 66 A.2d 726, 730 (N.J., 1949), (citing, inter alia, Montesquieu, The Spirit of Laws, c. VI, The Constitution of England (1746) and The Federalist Nos. 47 -51). 

And for current evidence of this doctrine, the Court would have needed to look no further than Article III of the New Jersey’s Constitution of 1947, which provides:

“The powers of the government shall be divided among three distinct branches, the legislative, executive, and judicial. No person or persons belonging to or constituting one branch shall exercise any of the powers properly belonging to either of the others, except as expressly provided in this Constitution.”

Indeed, New Jersey’s high court has often seen fit to pay homage to this doctrine, when it so chooses:  “While no rule of thumb will cover all the cases, in general it may be said that no deviation from the constitutional provisions incorporating the doctrine of the separation of powers will be tolerated which impairs the essential integrity of one of the great branches of government.”  Morss v. Forbes, 24 N.J. 341, 372, 132 A.2d 1, 18 (N.J., 1957); see also Id. at 385, 132 A.2d at 26 (Weintraub, dissenting) (“[T]he same principle of separation of powers forbids the judiciary to exercise a discretion vested in the legislative or executive branch, or to review an exercise of that discretion in an area which is purely political and does not involve the rights or liabilities of a litigant.”); Casamasino v. Hudson County, 730 A.2d 287 (N.J., 1999) (“Where one branch of government has been specifically vested with the authority to act in a prescribed manner, neither of the other branches may usurp that authority.”).

The obvious weakness in this arbitrary selection, of when to honor (and when to ignore) the Separation of Powers Doctrine, is its hypocrisy.  That hypocrisy makes it increasingly difficult to trust those on the Left when they preach about the notion of the Rule of  Law.  To the outside observer, it looks more like an Emperor making up rules on the spot to justify his whim. 

In contrast, the litany of states who have chosen to implement “Marriage-Protection” Amendments to their state constitutions stand as proof positive, that when Conservatives say they believe in Federalism (a sister principle to Separation of Powers), they pursue political results the long, arduous, old-fashioned (constitutional) way:  They get citizens to vote on the state level.  Indeed, the failure of the proposed federal Marriage-Protection Amendment owes more to the adherence among Conservatives to legal principles than it does to Liberal activism on any real scale. 

Those on the Left cannot conceive of such dogmatic faith to a set of timeless truths.  For them, that sort of legal formalism became passé a century ago, and under the self-described banner of “Legal Realism,” many in the legal community are really just cynics without law, or worse, using the law when it suits them.  Let us hope that the Emperor’s new fashion sense does not gain any more popularity. 

IRK

26 October 2006