By Peter Parisi
The Washington Times
January 08, 2004


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repealed.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.