LITTLE ROCK — Nearly 100 years ago, the legendary Supreme Court Justice Oliver Wendell Holmes declared that striking down an act of the legislature as unconstitutional was “the gravest and most delicate task [the Supreme] Court [could] undertake.” He was correct-in a democracy, where the people rule, overruling the people is serious business.
Last month, the Arkansas Supreme Court undertook this delicate task, declaring unconstitutional Initiated Act I, passed in 2008, which provides that individuals who are unmarried cohabiting sexual partners are not allowed to adopt. In doing so, the court echoed Justice Holmes, noting that “an act should be struck down only when there is clear incompatibility between the act and the constitution.”
But just how clear wasthis alleged incompatibility? See if you can follow:
The Arkansas Constitution contains no express right to privacy.
It does, however, contain a right to enjoyment of life and liberty and the pursuit of happiness, as well as the right to be secure in one’s own home.
The word “privacy” appears in more than eighty Arkansas statutes (never mind what those statutes say, specifically), evidencing a public policy in favor of a general right to privacy.
In light of points two and three, the Arkansas Constitution contains an implicit fundamental right to privacy, which protects “private, consensual, noncommercial acts of sexual intimacy between adults.” This is true despite the Arkansas Constitution containing no express right to privacy.
A law that burdens a fundamental right like privacy is subject to heightened judicial scrutiny, meaning it must advance a “compelling state interest” and be the “least restrictive method available” for furthering that interest.
Act I burdens the right to privacy because it forces unmarried cohabiting couples to choose between cohabiting as sexual partners and adoption.
Pursuant to point five, Act I is subject to heightened scrutiny.
The act is not the “least restrictive method available” for serving the state’s interest in promoting adoption into stable homes.
The act is therefore unconstitutional as a violation of the right to privacy, though this right is not mentioned in the constitution.
Believe it or not, this rationale was not novel, nor was the result unpredictable. The methodology and language were authentic United States Supreme Court imports, and the decision wasbuilt on Arkansas Supreme Court precedent stretching back decades.
But when looking at old decisions to make new ones, judges can sometimes lose the constitutional forest for the precedential trees. However many previous cases can be cited to support the court’s ruling, Arkansas’ Supreme Court jurisprudence has reached the point where the people of Arkansas can be told “no” on the basis of constitutional rights found nowhere in their own constitution.
This is significant. In a constitutional democracy, it is the people who rule. Not only through legislation, but by holding themselves to their own constitutional standards through the process of judicial review-the process by which judgesundertake the “delicate task” of telling the people when they have overstepped their own bounds. In this way, judicial review serves an incredibly important role in protecting the minority from the whim of the majority. It is not a counter to popular sovereignty, but an example of it-herein, judges remind the populace of their own constitutional commitments.
But when judges overrule the people not with the constitution as written, but as they wish it to be (or as they wished it to be in a previous decision), the rule of the people morphs into the rule of a few people. This is what Holmes was warning about. In overruling the people, judges must make sure they are doing so with the tools the people gave them.
Of course, all of this is to say nothing of the merits of Initiated Act I as a policy judgment. They are in fact immaterial. Democracy is more about means than ends-we prefer our own bad decisions over a king’s good ones. Similarly, judges step in and overrule us when, and only when, we clearly violate the constitution to which we all subscribed, not one of a judge’s own making.
In contentious political times, the temptation to circumvent legislative processes is great, but it is in these times that our chances for robust debate are best and the political process is most important. But the Arkansas Supreme Court undertook that “gravest and most delicate task” and decided that Arkansans had stepped out of constitutional bounds. How clear were the court’s reasons for doing so? Again, see steps one through nine.
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Blake Edwards is a graduate of Conway High School and the University of Arkansas. He is currently studying at the Pepperdine University School of Law in California.
Editorial, Pages 21 on 05/28/2011