THE GENARLOW Wilson decision by the Georgia Supreme Court must be viewed as a disappointment. No, not because Wilson, sentenced to a mandatory 10 years in prison for, at age 17, having consensual oral sex with a young lady two years his junior, was instantly set free and his sex-offender registry status erased. Rather, it is terribly disappointing because the vote by the justices was 4 to 3.
How can three justices with straight faces argue that what the others — and most of the public — consider to be “cruel and unusual punishment” is acceptable because the legislature, in writing the law, was willing to allow it? How can critics of the majority opinion — which deserved to be unanimous — condemn it as “judicial activism” because the judges were “legislating from the bench”? Has understanding of the role of the judiciary, particularly as regards fundamental principles, really plunged to such depths?
Just because legislators write a law that voids human rights, or singles out some for a punishment others do receive or, as in this case, do so and then change their minds and not repair the damage, does not mean they can get away with it, that they cannot and must not be challenged? Indeed, that’s why the courts, when issues rise to this level, are supposed to be the umpire and cry out “Foul ball!”
IN THIS INSTANCE, so similar to the recent Rome case involving Marcus Dixon that was also overturned by the same court — and sadly by a 4-3 vote as well — the legislature far overstepped its bounds. And, one is tempted to say, that is particularly true when such elected bodies no longer represent “the will of the people” but more the campaign posturing of political parties or the bought-and-paid-for views of special interests.
When the political process itself has become so polluted, and when even election vote counting itself is not foolproof, is any legislature to be trusted this much? Are they really infallible and able to hold themselves above the law ... and not subject to an appearance before the bench?
There has been a notable and observable trend in all courts across the land, not just Georgia’s, for jurists to act cowed by either or both of the legislative and executive branches. Stripped of former powers, such as flexibility in sentencing decisions, they seem to seek to avoid swinging at the hardballs on the corners to wait for a softer pitch down the middle. Time and time again, instead of tackling a clear question of constitutionality or principle, they wind up arguing about how many angels can dance on the head of the pin, whether all the i’s were dotted and t’s crossed in the increasingly complex technical maze of legalities surrounding almost everything in a courtroom.
HAVING RECENTLY raised this very question with a Georgia Supreme Court justice in conversation, and watching him deftly turn it aside — yes, precedent-setting issues do need to be clear and not clouded — one still must wonder: When an injustice has occurred, and even the judge knows it, should he or she still let it slide because some manmade legalities stand in the way?
What is justice for if not to right wrongs? No, our system of government does not make the judges God but neither does it do so for the legislature ... or chief executive.
In the Wilson case, the dissenters argued that because the General Assembly, in changing the offense from a felony to misdemeanor for what amounts to children, did not make its action retroactive and thus Wilson must stay in prison. They place themselves on very strange ground. Past injustices stand; only future ones can be repaired?
It’s as though, and we chose this example deliberately because Wilson, as Dixon, is black, slavery were outlawed ... as of tomorrow but all those now slaves have to remain in that status. Is thinking like this justice? Nay, is it even legal?
This was a blatant wrong. If the General Assembly voted, in order the end the current drought crisis, to have every third Georgian arbitrarily killed so demand for water could be reduced, would that be legal and the courts unable to stop it just because the legislature did it?
THIS NOTION was struck down long ago in this country. Most famously outlined by the U.S. Supreme Court in Marbury v. Madison in 1803, it goes back even further to “Federalist No. 78,” written by Founding Father Alexander Hamilton (the guy on the $10 bill) in 1788 in explaining the then-proposed U.S. Constitution.
Instead of dancing on the heads of pins, some jurists might instead re-read it:
“If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature in order, among other things, to keep the latter within the limits assigned to their authority.
“The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It, therefore, belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.”
THOSE TO WHOM this is not clear have been reading convoluted court briefs for far too long.
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