Saturday, June 28, 2014

Yes, the Arkansas Constitution can be unconstitutional

Posted By on Sat, Jun 28, 2014 at 7:39 AM

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An article in today's Democrat-Gazette about Circuit Judge Chris Piazza's denial of attorney fees for the successful attorneys in the challenge of Arkansas's constitutional ban on same-sex marriage reminded me of a point I've been meaning to make.

The article noted that Piazza's ability to strike down a constitutional provision had been questioned. it also noted Marbury v. Madison, the 1803 case that established the primacy of the courts in determining U.S. constitutional questions.

So about that Arkansas Constitution:  It has, of course, been found unconstitutional before. In 1958, the U.S. Supreme Court, in Cooper v. Aaron,  said Amendment 44 to the Arkansas Constitution, aimed at barring blacks form attending schools with whites, and other acts to prevent Little Rock desegregation were unconstitutional. It was a ringing decision and a profound statement of judicial supremacy over nullification by the states. The nullifiers still live — and not just the Jason Raperts attempting to put up a stateline roadblock to gay rights.

If you've the time, you could do worse than reading the Cooper decision and its restatement of the power of the 14th Amendment, the very vehicle by which Piazza invalidated Arkansas law (and which Rapert terms judicial overreach.)

The words of a 9-0 Supreme Court in 1958 are no less true in 2014 (though it remains to be seen if the Arkansas Supreme Court begs to differ):

The controlling legal principles are plain. The command of the Fourteenth Amendment is that no "State" shall deny to any person within its jurisdiction the equal protection of the laws.

"A State acts by its legislative, its executive, or its judicial authorities. It can act in no other way. The constitutional provision, therefore, must mean that no agency of the State, or of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws. Whoever, by virtue of public position under a State government, . . . denies or takes away the equal protection of the laws violates the constitutional inhibition; and, as he acts in the name and for the State, and is clothed with the State's power, his act is that of the State. This must be so, or the constitutional prohibition has no meaning.

Amendment 44 wasn't formally stricken from the state Constitution until a lawsuit brought by black legislators in 1989. The attorney general, Steve Clark, agreed that it was unconstitutional and didn't fight the suit. Then-Gov. Bill Clinton had asked that he take that position.

In striking down the amendment, Judge Henry Woods, too, cited the 14th Amendment's promise of equal protection.

Amendment 44 directly and flagrantly challenges the above principles, which are the bedrock on which this republic was founded. They are the principles under which we have flourished — that the rule of law prevails over the rule of men. It was courageously defended long before Marbury by great English jurists such as Chief Justice Edward Coke. At the risk of losing his head, Coke told a furious Stuart king that even he "was under God and the Laws

The amendment, though invalidated, remained on the books in Arkansas until repealed by voters — barely — in 1990,

I agree that school desegregation was the law of the land when Arkansas tried to interpose its power against the federal government. The U.S. Supreme Court hasn't ruled wholly on gay rights, yet, but it has declared firmly that legally married same-sex couples are entitled to equal treatment with other married couples. That has not been extended in Arkansas yet and legislators like Rapert resist mightily.

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