Judges rampant, merrily legislating


WASHINGTON -- So exasperated is Nebraska's attorney general, Don Stenberg, with judges who legislate, he is audaciously asking the Supreme Court to breathe life into a rarely invoked clause of the Constitution. Otherwise, he says, self-government will be a mockery in his state, and about 130 murderers will have to be retried or released. However, if the Supreme Court does what Mr. Stenberg wants, the result may be more of what he rightly deplores -- judges rampant, merrily legislating.

In 1986 Ronald Williams had an argument with Eric Holmes. Williams shot and killed Holmes, who was unarmed. The jury convicted him of second-degree murder.

In a reform of the criminal code that became effective in January 1979, Nebraska's legislature deliberately removed "malice" as an element of the crime of second-degree murder. But in a 1994 appeal of a second-degree murder conviction the court simply asserted that malice must be a component of that crime. The court reasoned that otherwise there would be no grounds for distinguishing between second-degree murder and manslaughter. But Nebraska's reformed criminal code makes clear that the difference concerns intent.

Before 1979 the crime was defined this way: "Whosoever shall purposely and maliciously, but without deliberation and premeditation, kill another, every such person shall be deemed guilty of murder in the second degree." In 1979 the definition became this: "A person commits murder in the second degree if he causes the death of a person intentionally but without premeditation."

The court disregarded the legislature's clear and considered judgment, ruling that juries must be instructed that malice must be an element of second-degree murder. Unless the U.S. Supreme Court overturns the state court, Williams and about 130 other killers, some of whom pleaded guilty, must be released or retried. Never mind the staleness or unavailability of old evidence, or the pain to the families of victims.

Mr. Stenberg says this ruling is not merely cruel, and reckless regarding public safety, it also shreds the doctrine of the separation of powers. That is a cardinal tenet of republican government, under which people are governed by laws written by their elected representatives.

Usurped the legislature

Nebraska's judges usurped the legislature's power to define crimes. Mr. Stenberg wants the ruling declared a violation of the U.S. Constitution's Guarantee Clause, on which there is almost no case law. It says: "The United States shall guarantee to every state in this union a republican form of government."

The judges on Nebraska's highest court have simply rewritten a statute. This in spite of the fact that Nebraska's supreme court has hitherto held that "it is not within the powers of the judicial branch . . . to enact laws or to define or punish crime."

Mr. Stenberg believes the state has recourse only to the Supreme Court because the legislature "cannot re-repeal the element of malice from its definition of the crime of second-degree murder. From the standpoint of the legislature, it is gone. Here its absence is simply being ignored by the judicial branch of state government."

But can the U.S. Supreme Court, with its itch to legislate, risk equating that activity with a violation of republican principles? And imagine how judicial activists on that court might abuse the guarantee of "a republican form of government." Consider what people regularly do with the definition of "democracy."

In his book "Self Rule: A Cultural History of American Democracy," Robert H. Wiebe, professor of history at Northwestern, notes the tendency of intellectuals to define democracy less in terms of procedures, such as elections, than in terms of outcomes. Thus "the subject of democracy comes to resemble a great pile of everybody's pet concerns." Democracy is defined as a political process that produces policies favored by the person doing the defining.

Arm judicial activists with the Guarantee Clause, and you will have judges using that sword to cut down state policies they dislike or to mandate those they do, saying things like, "There is only real republican government when there is [fill in the blank: no capital punishment, an entitlement to welfare, no large disparity of wealth, etc.]."

Absent such problematic relief as might be wrung from the Guarantee Clause, what can Nebraska do? Its legislature can re-enact its definition of second-degree murder, and deliver the law to the justices on a silver salver, together with a notice of impeachment proceedings.

George F. Will is a syndicated columnist.

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