Margaret Marshall Decided Gay Marriage All by Herself

Who Can Correct This Serious Assault on Our Constitution?

            When Justice Marshall decided the “gay marriage” case all by herself even before the case was filed in the courts, who could correct this serious disobedience of our Constitution?

            Before Marshall voted, it was a 3-3 tie with three of the Associate Justices voting with Marshall and three against her. The most important case in the history of the SJC was decided by Margaret Marshall alone without input from anyone.  

            Obviously the Courts can not correct this travesty. Nor can the Governor. Nor have the federal courts intruded into state questions.

            Indeed, it was because of the probability of this happening that John Adams, the second President of the United States and the man who wrote our state Constitution in 1780, had the wisdom and the foresight to provide for the Removal of oppressive judges.

            A landmark decision by the Supreme Judicial Court (SJC) in 1883, “Commonwealth v. Harriman,” summarized the history of the provision up until then.   It said that our equivalent to the Bill of Rights is known in our Constitution as the Declaration of Rights. Our Constitution was written eight years before the U.S. Constitution. Our Constitution was “mostly the work of John Adams.” It also said that our removal of judges also came from John Adams. The following was written in 1883 by the SJC:

            “No student of the Constitution and its history can fail to see that it was the purpose of those who framed it, and of the people who adopted it, to establish a carefully prepared system of government, consisting of three coordinate departments, the executive, legislative and judicial, each, as far as practicable, independent of the others, each balancing yet protecting, checking yet preserving, the others.” It continued:

            “In this form they were accepted by the people, and have stood unaltered as the fundamental law to this day, notwithstanding the several attempts which have been made to modify them.”

Attempts by Powerful to Change John Adams' Work Have Failed

            The first attempt to change John Adams' provision of Removal

came forty-years after he wrote it. This occurred at a state Constitutional Convention in 1820, where “the most eminent jurists and statesmen,” made a “strenuous effort” to make it much more difficult to remove judges according to the 1883 opinion.
            Instead of sending the removal of judges on for a vote of the people if 25% of the legislators approved doing so, they attempted to require that it be approved by 67% of the legislators.  This was rejected by the Convention “by a large majority,” the court reported in its 1883 opinion.

            Another change required that the judges be apprised of the “causes of the removal.” This was approved by the Convention in 1820 but that was rejected by the people. “[T]hey [the people] thus [decreed] that the power of removal by address should stand as it did in the Constitution of 1780,” said the SJC in 1883.

            The SJC in 1883 summarized all this in a short statement: “We think the uniform practice since 1780 has been to regard this provision as conferring an unrestricted power of removal upon the legislative and executive departments. When we consider the origin and history of the provision, the obvious and natural meaning of its language, and the uniform practical construction which has been given to it, we are forced to the conclusion that the intention of the people was to entrust the power of removal of a judicial officer to the two coordinate branches of the government without limitation or restriction.”

            The power was used “infrequently,” according to the 1883 court, but its presence was a powerful statement to the judges.

            The 1883 court cited an 1803 case, where two judges on the trial court were removed for extortion. The lawyers representing the plaintiffs in the 1883 case alsomentioned some other cases:

            1821 A judge of Probate was removed.

            1858  Two trial judges removed for extortion.

            Since the decision in 1883, the provision has continued intact, although there are lawyers who question whether the provision satisfies federal Due Process. This is an “interesting” question that lawyers would love to debate for many reasons, but it does not help this state to move on with its business. Therefore, Representative Goguen has solved the problem by preparing an "Indictment" which sets forth for the four judges a list of the four Counts which will be used against them in the Removal procedure.