It may seem like old news now, but when all this talk of election campaigns starts raging, my thoughts often turn to that travesty of a New Jersey Supreme Court decision made in October 2002.
You remember the one: Robert Torricelli--in a scandal induced freefall in the polls--bowed out of the race in order to be replaced on the ballot by a Democrat who had a chance of winning. The one where State law was tossed aside by the Democrat-packed bench. The one where the so-called "two-party system" was officially codified into law.
In 2000, Sen. John McCain threatened court action in the case of the New York state Republican primary--where George W. Bush was the only one of the several contestants listed since, by law, the Republican Party of New York had the right to list only the candidate(s) it wished to list. Steve Forbes, in a televised debate, spoke against the practice as the institution of "a Soviet-style" forced party conformity. Shouldn't Republican primary voters have a choice among willing candidates? While the inner-workings of a political party may seem out of the jurisdiction of a state court; the outer-workings of a general election are clearly subject to existing statute.
If McCain had decided to seek a "third-party" nomination in '04, he may have found his tussle with the New York Republicans to have been inadequate preparation for what might have laid ahead.
There are many reasons to protest the 2002 NJSC ruling. Sure, they ignored the statutory 51-day deadline for a party to change it's Statewide ballot. Sure, they substituted their definition of a "right to vote" for the Legislatures Constitutional authority to proscribe the voting process. Sure, they invoked their "duty" to divine the legislative intent of a statute that was wholly unambiguous. But those aren't my main concerns with the ruling. (Those are, of course, important concerns. But, for the sake of this post, I'll confine myself to the most unprecedented aspect of the ruling.)
Consider this seemingly high-minded portion:
"...the Court being of the view that -(it) is in the public interest and the general intent of the election laws to preserve the two-party system and to submit to the electorate a ballot bearing the names of candidates of both major political parties as well as all other qualifying parties and groups." "And the Court remaining of the view that the election statutes should be liberally construed --to allow the greatest scope for public participation in the electoral process, to allow candidates to get on the ballot, to allow parties to put their candidates on the ballot, and most importantly, to allow the voters a choice on Election Day."
Political parties are not government institutions, they are associations of citizens pooling their resources and working together toward a common cause. The candidate on the New Jersey ballot was Bob Torricelli, not the Democratic Party.
Their defense of voter choice, as they consider that to be "most important", is completely indefensible. The voters had, as allowed by law, a Democrat candidate on the ballot--and his name was Torricelli. There were also six other candidates on the ballot. The fiat that there would have been no choice without both major-party's fronting of a candidate establishes that "third-party" candidates are henceforth functionally illegitimate; they offer no choice: they are not an option.
One can only conclude that if the 17th Amendment were repealed and the New Jersey Legislature were to exercise their constitutional authority and appoint their Senators, the NJSC would have to rule that action unconstitutional.
Also, if the justices of the NJSC were instead in Massachusetts, or Virginia, or any of hundreds of other states, towns and districts, that had uncontested elections (such as the uncontested re-election campaigns of John Kerry [D-Ma] and John Warner [R-Va]), those elections would have had to be ruled unconstitutional.
Has the NJSC effectively mandated that political parties must sponsor a candidate in order to guarantee the voters' newly found Constitutional right to have a choice between the two "major" parties? Should that mandate be restricted only to the "major" parties?. Is that any of the Courts damn business?
New Jersey may have saved the Democratic Party from defeat in the last cycle, but they've paved the way for all "non-major" parties to be lawfully discriminated against in the future. These "third parties" are also associations of citizens pooling their resources and working together for a common cause, and entitled to equal protection under the law. Yet the NJSC -- by virtue of the stated rationale that formed it's judgement in the Torricelli case -- has ruled against them.
Perhaps it's just that, while settling election disputes, Supreme Court justices -- who have all been appointed by members of the Republican and Democrat parties -- are more loyal to their Incumbent Party patrons than to their sworn duty to apply the Law.
Once upon a time in the Land of Make-Believe there was a small band of thieves that stalked a public park wearing KISS make-up. They would jump out of the bushes and snatch the purses of old ladies, take the watches from yuppie men, and the candy necklesses from little boys and girls.
"I have no idea who they were or what they look like," each victim would tell the police. "They were wearing frickin' KISS make-up!"
The local citizenry was outraged that common criminals would conceal their facial features and make it impossible to indentify them in a police line-up.
The town's Council passed an ordinance making it unlawful to wear greasepaint, or any mask, to conceal one's true identity while on public property.
The townfolk were very pleased with this new law. Until Halloween came around.
"Oh, no! We've killed Halloween!" one mother of four cried to the Mayor as she consoled her sobbing children in the Town Hall, "and the Council is out of session until January! Whatever will we do?"
"Go to the Courts!" one brave high school student roared.
"That ain't gonna work," said the local florist. "The law is plainly written: 'No masks in a public place'. I'm afraid there'll be no trick-or-treating this year."
But the moms and dads of the Land of Make-Believe took the case to court anyway...and won.
The Justices of the Court wrote this very brief opinion:
This court finds that the statute at issue in this case does not prevent the celebration, observance or practice of Halloween; nor of any festivities heretofore traditional and appropriate including, but not limited to: individual mask-wearing, trick-or-treating, bobbing for apples or any other similar produce, assembled masquerade parties, keggers or any other activities associated with Halloween at time previous to the enactment of said statute.
Determining the "legislative intent" of a law is one of the major tools of settling case law. In order to adjudicate the Law, a Court must know what the People -- via their elected legislators -- have intended that Law to be.
The Supreme Court of Massachussetts has recently ruled that the right of homosexual men and women to marry within their own gender is guaranteed by the Massachussetts state Constitution. They argue that to forbid marriage on the grounds of sexual identity is discrimination under the Law. But is it?
From Merriam-Webster's online dictionary:
mar·riage ('mar-ij) noun 1 a : the state of being married b : the mutual relation of husband and wife : wedlock c : the institution whereby men and women are joined in a special kind of social and legal dependence for the purpose of founding and maintaining a family. 2 : an act of marrying or the rite by which the married status is effected; especially : the wedding ceremony and attendant festivities or formalities. 3 : an intimate or close union [the marriage of painting and poetry -- J. T. Shawcross]The word "marriage" meant to John Adams -- author of the Massachussetts Constitution -- just that: a legal union between a man and a woman. The fact that recent cultural shifts (and the resulting etymology) has resulted in our use of such terms as "same-sex marriage" is irrelevant to the Law. The intent of the Law's authors and ratifyers -- the People -- trump any foggy notions of what any altered usage of the language might, to the selectively undereducated, imply.
What the Massachussetts Supreme Court has done is to take the language of the People as it was (and intended to be) understood, and translated it into the modern colloquial usage.
Whether or not you or I support or oppose the legalization of gay marriage or civil unions isn't at issue (I happen to support it) . The issue is: Who, in a republic of laws, not tyranny, writes the Law?
Judicial Tyranny is the art of changing existing Law by redefining the words that already make up that Law. The rule of Whim -- of a few black-robed government appointees assuming Rule of the People -- is the most dangerous and insidious of the ways in which the rule of the People may be undermined because it imposes upon them a Law which they did not write and to which they did not consent.
Oh, and that Gene Simmons guy? That was me. (hey, Tongue is 9/10ths of the Kiss y'know...)