During the argument yesterday in the pardons case, one of the justices repeatedly stated that there was a “right of the people” relating to the publication requirement. At least once, he said that the people, by adopting the constitution, reserve a right to have the publication provisions followed.
Suppose that this view attains a majority of the court (I don’t think that likely, but play along with me). What are the parameters of this right of the people? What other claimed parts of the right of the people can be the subject of future litigation? Who can assert this right– all of us, or just the attorney general? Why is that?
Meanwhile, Anderson is being much more practical, restating the argument yesterday for the pardons in clear and straightforward terms.
What about the right of the people not to have a revenue bill passed in the last 5 days of the session?
As I suggest in the post NMC linked (thanks!), how we think about “rights” does not carry over well to how we think about separation of powers. For one thing, the judiciary enforces our rights, but the whole point of the separation of powers is that the judiciary is one branch out of three.
There would be no end to its micromanagement of other branches if every constitutional (and statutory?) requirement were for the courts to enforce.
I was thinking yesterday of the statute requiring the MSSC to issue its decisions in 270 days (which it does, usually). Is that constitutional? What if it were in the constitution? If it were, could the Legislature disregard a decision holding a statute unconstitutional if that decision issued later than 270 days?
Or would that be the kind of procedural rule that each branch must enforce for itself?
That Jurist lacks any real comprehension of how radical his statement is as a legal principle. The U.S. Supreme Court has attempted to bury the hatchet into the notion of the due process clause as a general repository of substantive rights unfettered from the text of the other amendments. If his point of view catches hold my section 1983 practice will really get interesting.
Our jurisprudence (our Republic now an Empire) has been carried away by this brand of ‘separation of powers’ Anderson champions. We have an Executive Dept. with 1/4 million ‘cleared’ civilians in the DC area. We have a huge standing army which a ‘free people’ would extinguish. We have armies of lobbyists made from former staffers & members. We have a runaway tax code that only specialized craftsmen know. We have a bankruptcy system and a drug court. In short, we have three runaway separate powers each with their own capricious constituencies. No wonder we have no idea what the government really is. Our whole emphasis has been on these specialties, not on the body politic. This bloated government is not the people…it is an industry and a tyranny.
I am sorry I failed to answer the proper questions that you raised. The criminal prosecutions are styled in some places, “The people of….vs” to say the government. Our much beloved former Governor had a shop going in the Executive Office as big as the white collar defense group at Butler Snow.
Does Jim Hood arguing that the judiciary can limit the power of the executive branch in the pardon situation weaken his position that the legislature cannot interfere with his hiring outside counsel. Although I personally favor the AG retaining such power, it seems ironic to me that he now says the governor cannot exercise his power as he sees fit.