Mike the Mad Biologist

To return to the awful decision by the Virginia Supreme Court from last week, which in the era of Trump, was like a dozen awful things ago, what bothers me is the inability of Virginia Democrats to realize that the moderate position is removal of the Virginia Supreme Court judges, as there is a far more radical argument to just ignore the court’s decision*. The Virginia state constitution states:

whenever any government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, inalienable, and indefeasible right to reform, alter, or abolish it, in such manner as shall be judged most conducive to the public weal.

In other words:

…the People of Virginia have the right to change their system of government, entirely outside of any kind of amendment process established by law. That is what it means for this right of the People to be “inalienable”: it cannot be given away, and therefore cannot be limited by law. The process established in Article XII of the state constitution is one means by which the People of Virginia can rewrite their state’s fundamental laws. But, per Mason’s Declaration of Rights, they are not obliged to work through that process.

Even if we accept the state Supreme Court’s interpretation of the Article XII process, therefore, it shouldn’t matter. The fact that the People of Virginia approved the amendment, in the end, is all that matters. Even if the process by which the amendment was placed before them was deficient, the People still had the right to act in their capacity as the true sovereign. Alternately, we can understand the People—who, as sovereign, are also the supreme judge of their own state’s laws—as having rejected the very argument adopted by the state Supreme Court (which had already been made in advance of the referendum). Either way, the Court has wrongly usurped the ultimate sovereign power of the People of Virginia.

This requires an open clash between the multiple branches of government, and arguably might be a step too far for most elected officials. Moreover, it is not clear the majority of Virginians would agree.

The more moderate position is to say that, yes, according to the widely accepted rules (or norms), your horrible decision must stand, but it will be the last decision you get to make. They should be removed, not only to protect the Commonwealth of Virginia from further predations by a corrupt court, but to make it clear to the entire judicial system, not just Virginia’s, that they are not the ultimate branch of government–other branches can and will check their authority when the court misinterprets the constitution.

*Ironically, many of the people really pushing this argument are not the far left (even if Fox News et alia might call them that). One (more) divide in the Democratic coalition is around the willingness to use power.