We don’t need no stinkin’ Supreme Court!

“I do solemnly swear, or affirm, that I will support the Constitution of the United States and of the state of Missouri…” — Oath of office for members of the Missouri House of Representatives, Missouri Constitution

“The judicial Power of the United States shall be vested in one supreme court and in such inferior courts as the Congress may from time to time ordain and establish…” — United States Constitution, Article III, Section 1.

“We do not need to wait for nine people to tell us what the constitution says or does not say.” — Rep. Kurt Bahr (R-St. Charles)

Rep. Kurt Bahr is finishing his first term in the Missouri House. He’s an Air Force veteran with a degree in history and political science from Oklahoma Wesleyan University and a Master’s Degree in Public Policy from Regent University. He’s a small businessman in O’Fallon. He’s a former intern of Congressman Todd Akin. And he doesn’t like the Patient Protection and Affordable Healthcare Act at all. In fact he dislikes it so vigorously that he thinks anybody who implements any part of it in Missouri should be charged with a crime. The House has passed his bill that would do that without waiting for the U. S. Supreme Court to rule on the constitutionality of the bill or any part of it.

When he was asked if the House should not wait for the court to rule before taking action on his bill, Bahr responded:

“The Supreme Court is not necessarily the sole arbiter of what is or is not constitutional. The constitution is a compact between states. We, the states, created the constitution, created the federal government. It is our job to recognize what is and what is not constitutional. We do not need to wait for nine people to tell us what the constitution says or does not say.”

We’ve watched hundreds of lawmakers serve in the general assembly since the Missourinet went on the air just in time for the 1975 legislative session. This is the first time we’ve heard anybody, let alone somebody with a political science degree, who had taken an oath to support the Constitution of the United States (that says the judicial power of the country will be vested in the court system) claim that it is the state’s “job to recognize what is and what is not constitutional.”

Bahr’s position was called a “nullification act” 180 years ago when South Carolina declared the power of the federal government to set tariffs in 1828 and in 1832 was unconstitutional and therefore was null and void in South Carolina. South Carolina started preparing to resist a military invasion by the federal government to enforce the tariffs. In Washington the President was authorized to use military force if necessary to enforce the law. He also was authorized to negotiate a tariff more friendly to South Carolinians. The Jackson administration negotiated more favorable tariffs to cool things off in South Carolina. The state’s convention reconvened and repealed the Nullification Ordinance. The states rights people claimed victory. The federal government kept tariffs of a sort so Washington could claim victory and a Civil War was averted for the time being.

“The constitution is a compact between states…” — Rep. Bahr

Rep. Bahr, who has a degree in history, might wish to read some additional history such as the letter of transmittal from the constitutional convention to the President of Congress. In it, convention president George Washington wrote, on Sept. 17, 1787:

“It is obviously impracticable in the Federal Government of these States to secure all rights of independent sovereignty to each, and yet provide for the interest and safety of all … In all our deliberations on this subject, we kept steadily in our view that which appears to us the greatest interest of every true American, the consolidation of our Union, in which is involved our prosperity, felicity, safety — perhaps our national existence.”

Perhaps someone with a degree in history and political science might be able to correct someone with only a minor in history that George Washington was not, in fact, speaking of a “compact” between states. Washington, instead, speaks of the document as being “the greatest interest of every true American, the consolidation of our Union.” Neither of us was present when the document was written defining the nature of our national government. But George Washington was.

The “compact between states” was the Articles of Confederation and Perpetual Union. It was a document in which the thirteen states formed a confederation of sovereign states. The Articles were important in the years after the Declaration of Independence to prove to the world that this was a legitimate nation with authority to negotiate internationally and, if it so chose, to wage war — which it had chosen to do. Rep. Bahr would have liked the Articles. They provided for no judiciary. States did not have to “wait for nine people” to tell them what was constitutional.

But that system didn’t work. A convention called to find ways to improve the Articles decided that the only thing to do was throw them out and create a Constitution. The end result was a document that reserved some powers to the states and some to a national government. One thing it reserved to the national government was a group of “nine people” who would make the ultimate decision about what would be constitutional.

Article I of the Constitution created the Congress. Article II created the Executive branch. Article III says, “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”

So let’s see if we understand Rep. Bahr. He has sworn to uphold the Constitution of the United States. The Constitution of the United States says there are three separate and co-equal branches of government, legislative, executive, and judicial. Rep. Bahr argues that a legislature in one of the 50 states can make a judicial ruling as it affects only the people of that state. (The PP&ACA is so unconstitutional that anyone implementing any part of it is a criminal.) It appears he should start getting ready to issue warrants because some parts of the Affordable Healthcare Act already are being implemented in Missouri.

There is another part of the Missouri Constitution that might add some spice to the discussion. The last words of Article III, Section 15 of the state constitution says “Any member convicted of having violated his oath or affirmation shall be deemed guilty of perjury, and be forever disqualified from holding any office of trust or profit in this state.”

Believe it or not, one of the great joys of being a statehouse reporter is having this kind of stuff unfold in front of you and then getting to report it and then wondering what kind of discussion about this Rep. Bahr would have with George Washington.

A simple observation

“Physician, heal thyself.” —  Luke 4:23

Within minutes after word reached the capitol that Jefferson City Circuit Judge Pat Joyce had thrown one of the Republicans’ top issues off the ballot — voter photo ID — because its ballot summary was “insufficient and unfair,” Senator Scott Rupp put out a press release headlined “Another Bad Court Decision.”

In our long years of watching the legislature and watching what seems to be an increasing number of court rulings against the laws it passes and hearing legislators blame the courts for “bad” decisions, we have reached a pretty basic conclusion.

There would not be so many “bad” court decisions if members of the legislature didn’t do such “bad” jobs of writing bills.

Just as losing candidates almost never blame themselves for their losses, legislators seldom blame themselves when courts find they passed flawed bills.

In the shadow of Solomon

The other day we sat in on a Missouri Supreme Court hearing to determine who gets a four-year old boy. You might have heard about it. One of the judges called the case “a tragedy.”

One of the people who read our story on Missourinet.com twittered, “Seriously, they are going to take this baby boy from his mother and dad and give him to an illegal?”

The comment illustrates the dilemma that judges often face in cases that are surrounded by emotion, politics, and public sympathy for one side or another. This case is far more complicated than the question asked by our friend on Twitter. And it will not end well for some people no matter what the final ruling.

Here, as we understand the circumstances of the case (partly through a summary of the case the court has provided us and partly through our own listening to the arguments and an hour of interviews afterwards with various interested parties).

An illegal immigrant arrested at a southwest Missouri poultry plant in 2007 was the mother of a seven-month old son. While she was serving two years in prison for identity theft, her son was adopted. She has taken her fight for her son to the supreme court. Once the legal action is finished, she will be deported to her home country of Guatemala. For a second time.

We don’t know what the court will rule. But this case has echoes of far ancient times. Two mothers went before King Solomon (1 Kings 3:16-28). Both were prostitutes who had given birth. The baby of one died. She took the living child from the other woman while the other woman slept and left her with the dead baby. The sleeping woman objected. They took their case to King Solomon.

23 The king said, “This one says, ‘My son is alive and your son is dead,’ while that one says, ‘No! Your son is dead and mine is alive.’”
24 Then the king said, “Bring me a sword.” So they brought a sword for the king.
25 He then gave an order: “Cut the living child in two and give half to one and half to the other.”

The child’s mother in the case before the supreme court says he is of her blood. She says she never abandoned him when she went to prison but placed him in the care of her brother. Her brother asked the mother’s sister to help care for the child. She, in turn, sought help from a minister whose children were babysitters. After a time, the minister contacted a couple that wanted to become foster parents to see if they wanted to adopt the boy. They filed documents seeking termination of the mother’s parental rights and judicial approval of the adoption.

The mother was served with the petition while she was in custody. The mother does not speak English and state law requires official documents in Missouri to be in English. No attorney was notified on behalf of the mother. No Guatemalan authorities were told she was in custody. Two days after the mother was served with the petition, a circuit judge transferred custody of the child to the couple seeking adoption. Later the court ruled the mother “abandoned” the child and terminated her parental rights. The judge then granted the adoption petition for the couple.

The mother and her lawyer say the judge did not comply with state adoption law in this process in several ways. She also says she was not given proper notice nor did it appoint a lawyer to represent her before the transfer hearing. Further, she says the judge mistakenly ruled she had abandoned her child when, instead, she had left her son in the care of relatives. Her lawyer says there are 14 failures by the judge that merit voiding the adoption.

The adoptive parents say the adoption was handled properly although the law was not strictly followed. They argue there was “substantial compliance” with the law. They argue the mother failed to challenge specific parts of the process at the right time. They claim she DID abandon the child. They say the juvenile court was properly ignored by their side during the process.

Their lawyer argued in the courtroom that it would be wrong to take the boy, who does not speak Spanish, away from the only parents he has ever known and give him to a woman who speaks no English, so she can take him to Guatemala when she is deported. What is best for the chid? On one hand is the argument from the adoptive parents. On the other is previous court rulings saying it is important to maintain the relationship between a child and his biological family.

The Guatemalan ambassador traveled from Washington, D. C. to attend the hearing and told us afterwards the case points up the shortcomings in United States immigration laws. He noted the child has dual citizenship as a Guatemalan citizen because his mother is from that country and having United States citizenship because he was born here while his mother was in the country illegally.

You can hear the arguments before the court with the story we posted at Missourinet.com Wednesday morning, the 10th.

Here is what courts have to do in all cases: rule on the law.

What the ambassador thinks of this country’s immigration policies is not material to whether state adoption law was or was not followed.

The case is about what is in the best interests of the child—as determined by the law, not by the sincere emotional arguments of the competing parties. The passion of a woman who has borne a sun who feels the boy has been taken from her improperly versus the passion of a couple that adopted the child and has raised him in a loving home are very real. But the central question appears to be whether a judge properly administered the law in determining the boy had been abandoned and whether a judge properly administered Missouri’s adoption law.

The mother is, indeed, an illegal immigrant. But the state law does not exempt illegal immigrants who give birth from the protection of state laws on adoption and child abandonment any more than King Solomon considered that the two women before him were prostitutes.

This is a case that hinges of the very issue that many court critics complain about—whether the law will be followed and whether the law WAS followed..

This is a case soaked with emotion. This is a case drenched with pain. This is a case in which one person or two people—human beings—face enormous hurt regardless of the final decision. And the boy, too.
The judges face criticism from one side or the other no matter how they rule.

But judges cannot worry about that. Judges have to worry about the law. Because if judges rule on the basis of politics, emotions, or on the basis of feared criticism, they weaken the protections all of us want to have under the law.

“Equal Justice Under the Law” is a principle that protects all of us.

Exercising that principal is hard.

So hard.

Cutting the child in two is no more realistic today than it was in King Solomon’s time. The court will decide.
The Old Testament relates that when the people heard how the case before Solomon was resolved, “they held the king in awe, because they saw that he had wisdom from God to administer justice.”