Monday, October 30, 2006
"At root, what that 4-3 decision ordering the Legislature to enact a new law sanctioning civil unions or gay marriage is about is: Who governs New Jersey? It is about who decides what law shall be Â? elected legislators or judges appointed for life."
Read the rest.
I guess that I'm inclined to agree. From the Federalist Society's purpose statement:
"It is emphatically the province and duty of the judiciary to say what the law is, not what it should be."
Which is itselfchannelingg Marbury, but adding (or possibly making explicit the implicit) a separation of powers point after the comma.
More than anything else, the order to the political branches to adopt a new law or laws, call it a grace period if you like, is a bit grating. Three coequal branches? The Governor of New Jersey "shall communicate to the Legislature, by message at the opening of each regular session and at such other times as he may deem necessary, the condition of the State, and shall in like manner recommend such measures as he may deem desirable" (Article V, Section I, paragraph 12 of NJ Const.), but the court can give them 180 days to act, or else? I know we aren't dealing with the 10th Amendment here, but the words conscription and commandeering definitely come to mind.
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