Judicial Overreach and Rewriting the Rules in the Middle of the Game in Pennsylvania

The views expressed in this article are those of a subject matter expert and do not necessarily reflect model policies adopted by the American Legislative Exchange Council.

Growing up in Pennsylvania one of my fondest wishes was for a Pennsylvania Super Bowl pitting the Steelers and the Eagles against each other in a West-East winner-take-all match that people would talk about for years.

Imagine what would happen though, if the referees decided to rewrite the rules of the game to one side’s benefit while the game was in progress?  Likely, a riot would break out over the injustice of changing the rules in the middle of play as well as the outrage that the referees had overstepped their authority transforming themselves into both rule makers and judges.

People inherently understand that competitive endeavors, whether sporting contests or elections need rules to function smoothly giving the rule makers a vital role in shaping the competition.  In football, the referees are there to interpret the actions on the field according to previously established rules.  Similarly, in small “r” republican governments, the courts serve as the referees in legal matters.

The NFL owners vote as a body on proposed changes to the rules.  The referees do not.  In a republic, the legislature, and in the case of amendments to state constitutions, the people propose and vote on the law.  The courts have no part in that process.

On January 22, 2018, the Pennsylvania Supreme Court decided the role of referee wasn’t good enough.  The Court announced that it would usurp power lawfully held by the owners of the Constitution (The People) to create its own piece of law by drawing a new Congressional District Map for the Commonwealth. This was a clear violation of its authority in its role as “referee” of the law.

John Locke’s writings in the First and Second Treatises of Government were often quoted by our nation’s Founding Fathers.  In chapter XI of the Second Treatise Locke wrote; “The first and fundamental positive law of all commonwealths, is the establishing of the legislative power.”

Locke also made it clear that the delegation of legislative power was the exclusive method for making law:  “Nor can any edict of any body else, in what form soever conceived, or by what power soever backed, have the force and obligation of a law.”

Justice Antonin Scalia once said: “It is the proud boast of our democracy that we have “a government of laws and not of men.” Many Americans are familiar with that phrase; not many know its derivation.

It comes from Article XXX in the first part of the Massachusetts Constitution of 1780, which reads in full as follows:

In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them:

The executive shall never exercise the legislative and judicial powers, or either of them:

The judicial shall never exercise the legislative and executive powers, or either of them:

To the end it may be a government of laws and not of men.

The Framers of the U.S. Constitution similarly viewed the principle of separation of powers as the absolutely central guarantee of a just Government.

Despite the clear language of the Pennsylvania and United States constitutions which both delegate legislative authority to the legislature, four Justices used a private third party to devise a map and declare that it would have the force and obligation of the law.  Pennsylvania’s Governor and Secretary of State are complicit in this judicial power grab proceeding as if the order were valid.

The Courts have become progressively bolder in recent years, and when they have willing accomplices in the executive branch, the dangers are manifestly greater.  “The Tryal of William Penn and William Mead” before the Crown Court in 1670 was an example to our Founders of what happens when the courts and the executive collude to infringe on the rights of the people.

Such examples were why America’s Founding Fathers carefully drafted the constitutions of the first states and federal government to secure the sovereignty of The People and the legislative bodies at the beginning of the contracts we call constitutions.

These contracts, between the people and the government they empower to write, execute and interpret the law, were drafted according to the longstanding legal doctrine of first principles.  The Pennsylvania Court has no authority under either the U.S. or Pennsylvania Constitutions to draft a law or an “edict” which would “have the force and obligation of a law”.  The Pennsylvania executive does not have the authority under the U.S. or Pennsylvania Constitutions to apply “by what power soever backed” to the order creating the Congressional maps.

In Depth: Federalism

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