THEIR VIEW: Setting the Record Straight: Democracy 101

By The West Virginia Record | Aug 11, 2011



CHARLESTON -- The West Virginia Record recently published an editorial offering a "remedial civics lesson" for a dissenting Supreme Court Justice. The editorial suggests that the West Virginia Supreme Court "does not have the right to nullify or amend" a legislative act or "overrule the legislature."

Please forgive the pun, but we need to set the Record straight. The West Virginia Constitution provides the West Virginia Supreme Court with original jurisdiction "in cases involving personal freedom and the constitutionality of a law." This same authority can be found in every state constitution in the United States of America.

This is not a new, nor a controversial, component of democracy. Alexander Hamilton published Federalist Paper No. 78 in 1787, more than 200 hundred years ago, which explains that "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 United States Constitution was ratified in 1788 and mandates that "judicial power shall extend to all cases, in law and equity, arising under this Constitution [and] the laws of the United States." The United States Supreme Court, led by Chief Justice John Marshall, first invoked the power of the judiciary to strike down an unconstitutional law in the landmark case Marbury v. Madison in 1803.

Throughout American history, our courts have used this authority sparingly to strike down unconstitutional laws. In Near v. Minnesota, the court struck down a law that censored freedom of the press. In Epperson v. Arkansas, the court struck down a law that prohibited teaching evolution in public schools. In Strauder v. West Virginia, the court struck down a law barring non-whites from serving on a jury. In Griswold v. Conneticut, the court struck down a law banning contraceptives. In Brown v. Board of Education, the court struck down segregation laws in public school.

Our Founding Fathers recognized the propensity of the legislature to "yield to the impulse of sudden and violent passions, and to be seduced by factious leaders into intemperate and pernicious resolutions." The West Virginia legislative branch, with its turnstile members of the House elected every two years, and every four years in the Senate, has the authority to enact law. Our Supreme Court has the authority to strike down any law that conflicts with the Constitution.

The remedial student calls this "legislating from the bench." The advanced student calls it democracy.

Farrell is a Huntington lawyer and President of the West Virginia Association for Justice.

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