Wednesday, January 14, 2009

Judicial Activism Rejected

A federal district court has rejected a claim that the New York City Council, by repealing term limits put in place by voters through popular referendum, violated the voters' rights of free speech or due process under the federal Constitution.

This is a sound decision. The status of a law adopted by popular referendum, and particularly whether that law can be altered or repealed by another law adopted through normal legislative processes, is a matter for the local (usually state-level) law to determine. A state or city could certainly provide that a law adopted by referendum can be altered or repealed only by referendum. But New York hasn't done that. New York's highest court has specifically held that laws adopted through referendum have the same status as laws adopted through normal legislative processes. That means they are all subject to the usual rules of amendment and repeal. The controlling law is whichever law was adopted most recently.

The federal Constitution shouldn't be involved here. It doesn't speak to this issue, and it would be a mistake to torture general provisions such as the Due Process or Free Speech Clauses in order to make them apply.

If the people of New York City want to adopt a term limit by referendum, they can amend the City Charter do so. If they want the limit to be unchangeable except through another referendum, they can amend the City Charter to provide that the amendment is unchangeable except by another referendum. But they didn't do that. The federal government shouldn't get involved.

Plaintiffs' claims that the term limits law does fall in the small category of laws that are required under state or city law to be submitted to popular referendum are actually closer questions (one such category is any law that "changes the term of an elective officer"). But I don't think much of their federal constitutional claims.

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