Taming judicial activism

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In a contest of wills between the British Parliament and the American Colonists before the Revolution, Parliament in 1767 passed the Townshend Acts, which taxed glass, painters' lead, paper and tea.

Three years later, all the duties except those on tea were repealed. Parliament had retained the tea tax, partly as a symbol of its right to tax the Colonies. The Colonists sought to prevent consignees from accepting taxed tea and were successful in New York and Philadelphia in May 1773. In Boston, three tea ships arrived and remained unloaded, but the Colonial governor refused to let the ships leave without first paying the duties.

A group of indignant Colonists -- led by Samuel Adams, Paul Revere and others -- disguised themselves as Americans Indians, boarded the ships on the night of Dec. 16, 1773, and threw the tea into the harbor.

The object of the Colonists' indignation? What amounted to a 3-cents-a-pound tax on the tea.

Fast-forward 230 years. A tax of 3 cents a pound hardly seems worth venturing out on a cold New England winter's night for a Boston Tea Party -- particularly nowadays, when proper Bostonians hardly flinch at paying $3 (or more) for a grande decaf caramel mocha latte at Starbucks.

What is less clear is whether the Massachusetts citizenry will rise up against a latter-day judicial oligarchy -- four members of the state's Supreme Judicial Court -- that makes King George III look positively benign by comparison.

Led by state Supreme Court Chief Justice Margaret Marshall, the robed rogues on a 4-3 vote on Nov. 18 found a heretofore undiscovered right to homosexual "marriage" in the Massachusetts Constitution. It must have been lurking in "an emanation of a penumbra of the right of privacy" -- to paraphrase that dubious assertion from Roe vs. Wade -- because even Mrs. Marshall conceded she doubted it had been John Adams' intention to include gay "marriage" as an inalienable right of his fellow Massachusetts residents.

The ruling called to mind Clinton crony Paul Begala's infamous 1998 line about presidential executive orders: "Stroke of the pen, law of the land. Kinda cool."

The difference, of course, is that presidents are term-limited (or voted) out of office, and thereby limited in the damage they can do to at most eight years, and executive orders can be summarily overturned by a successor. On the federal bench and among most state judiciaries, there are no similar constraints on radical activists like Mrs. Marshall -- and as such, no accountability.

Ultimately, Mrs. Marshall and her ilk are emblematic of the battle over President Bush's judicial nominees -- or more specifically, the battle over judicial activism vs. restraint. That's because liberals long ago realized the only way many of the most divisive items on their "to-do" list (school busing, affirmative action, abortion, to name three others) would ever become the law of the land is through judicial fiat ("stroke of a pen, law of the land"), the consent of the governed notwithstanding.

And therein lies the larger issue at stake -- beyond gay "marriage" or even the proposed Federal Marriage Amendment, needed since the 1996 Defense of Marriage Act is unlikely to withstand a legal challenge before a U.S. Supreme Court that in June discovered sodomy is a constitutional right.

It's no coincidence that states where judges are elected are less likely to experience judicial activism of the sort Massachusetts must now work to undo through a state constitutional amendment (as also occurred in Alaska, Hawaii and California.) The requirement that judges go before the voters periodically provides a much-needed restraint on the activist impulses of what was once regarded as the "least dangerous" branch of government.

At the federal level, Republican senators on the Judiciary Committee should bring up for hearings and a vote a constitutional amendment that has been around since at least the time of Vermont's Supreme Court same-sex civil unions ruling in 1999. It would end federal judges' lifetime appointments, making them instead subject to presidential renomination and Senate reconfirmation every 10 years. (Ten years was chosen specifically to outlast a two-term presidency.)

Massachusetts and other states without elected judges would do well to consider following suit with respect to state judges. Such amendments would make the Margaret Marshalls of the federal and state judiciary pause to consider the long-term consequences of their rulings -- if not for the country (or state), at least for themselves. Needing to be renominated and reconfirmed is, after all, preferable to being thrown into Boston Harbor by an outraged citizenry.

Peter Parisi is a copy editor for The Washington Times.