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I agree, this sounds
very odd. If I understand your description correctly, why didn't the
Nevada Court simply order the Legislature to fund education (per the older state
constitutional mandate) within the amount of revenues available, thus complying
with both state constitutional mandates (which don't sound inherently
irreconcilable)? The Court could even have ordered across-the-board
spending cuts in the areas of the budget that do not enjoy a constitutional
funding mandate, though surely the preferable remedy (more consonant with
judicial restraint and prudence) was simply to order the Legislature to fix
the problem within some deadline.
However, while the
Nevada Court's decision sounds wrong on the merits and probably imprudent, I
don't see anything wrong in principle about its citation of judicial
prerogatives per Marbury. While the courts do not have a monopoly (the
*only* word) on constitutional interpretation, it is a necessary
consequence of judicial review and Marbury that the courts have the *final* word
on such issues in any case properly brought before them. Some governmental
body has to have the final word, and it is not in the nature of executive or
legislative bodies to resolve legal disputes. That's why we have
courts.
Bryan
Wildenthal
Thomas Jefferson
School of Law
Yesterday, in
Guinn v. Legislature of the State of Nevada, http://www.leg.state.nv.us/scd/119NevAdvOpNo34.pdf,
the Nevada Supreme Court effectively abolished a recently-enacted state
constitutional provision requiring a 2/3 vote of the legislature to enact tax
increases, granting the Governor's request for a writ of mandamus and
directing the legislature to proceed to adopt a budget for education, with
necessary tax increases, by mere majority vote. The Court based its
holding on other, older provisions of the Nevada Constitution requiring
the legislature to adopt a balanced budget and to fund public education.
Apparently, the legislature had approved a $3.2 billion budget that excluded
education, and for which existing revenues were adequate, but was unable to
muster the 2/3 vote for a new tax hike to fund educational programs that it
had excluded from the approved and funded budget.
Apropos of our
recent discussion regarding Marbury, the Court decided to resolve the conflict
because "constitutional construction is purely a province of the
judiciary." (citing Marbury). This seems a great expansion on
Marbury, of course, and even on Cooper v. Aaron, etc. Any
thoughts?
Also, does anyone
see any other problems with this opinion? Rejecting a more recently
enacted, specific constitutional requirement in favor of a century-old, more
hortatory requirement?
Beyond just the
Nevada Court's suspect interpretation of its state constitution, are there
federal rights implicated here? Of the voters who adopted the 2/3
constitutional requirement by initiative? Of state legislators who now
have their votes diluted as a result of this ruling? Is there a
Republican Guaranty Clause issue here? And in these peculiar
circumstances, would it be justiciable? Other
issues?
This seems rather
extraordinary to me. Do others on this list agree, or am I missing
something?
John C. Eastman
Professor of Law, Chapman University
School of Law
Director, The Claremont Institute
Center for Constitutional Jurisprudence
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