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Law-makers Have No Choice – They Are Obligated to Repeal Prop B
On November 2, 2010 the people of Missouri spoke.
In the narrowest voter approval of a statute change ever, 51.6% of those Missourian voting approved a law described by a prejudice ballot title.
Missouri – November 11, 2010
The Missouri General Assembly has an obligation to repeal at least part of Proposition B in spite of the fact that it was just passed by the voters. The courts have a similar obligation.
That might sound like an odd position from someone who may very well be Missouri's most outspoken proponent of the citizen's right to the initiative petition process. After all, the people have spoken and we should respect their collective will, shouldn't we?
Our state constitution says “The people reserve power to propose and enact or reject laws and amendments to the constitution by the initiative, independent of the general assembly.” (Art. III § 49) This incredibly important provision is designed to afford the people a “check” on the power of government -- a way to override or bypass officials who have been oppressive or unresponsive to the will of the people.
The initiative petition process is an important constitutional “tool” among the others which are designed to preserve Missouri's system of government and the liberty of her people. It fortifies the first great characteristic of our constitutional republic, which is the premise that “all political power is vested in and derived from the people ”. (See Mo. Const. Art I § 1)
There is, however, another great characteristic of a constitutional republic – we are governed by the Rule of Law. That means that there are some laws that not even a majority of the people have authority to enact. Those would be laws which diminish God-given and constitutionally protected rights.
So on one hand an American Constitutional Republic protects the people from the tyranny of a few by ensuring that all political power remains vested in the people and on the other hand it protects the individual from the tyranny of the majority through the principles of the Rule of Law.
Prop B's limit of 50 breeding dogs is tyranny of the majority. It violates basic constitutional principles which override even the right of the people to use the initiative process. Put another way, the people lack jurisdiction to limit a breeder to 50 breeding dogs because such limits amount to a limitation on one's right to earn a living – “the pursuit of happiness and the enjoyment of the gains of their own industry”. (Mo. Const. Art I § 2)
If one takes the arguable position that the state has an interest in the well-being of the property (dogs) of individual citizens, and if there were something special about the number 50, then there might be some state interest that would temper the individual rights mentioned. But 50 is an arbitrary number with no meaning what-so-ever. 51 or 60 or 200 breeding dogs can be kept in equally healthy and humane conditions as 5 or 10 or 50.
There is no relationship between the number of animals a breeder can have and the well-being of those animals.
Now, a limit on how many dogs you could have per handler, or how much living space must be afforded each dog would affect their well-being, and some might claim the state has an interest in those “per dog” conditions, but as long as each individual animal is afforded an adequate living arrangement, why should the number of dogs matter?
So the 50 dog limit is blatantly unconstitutional; but what obligates the state's law-makers to repeal it? What obligates the courts to over-turn the law?
It is the same constitutional clause that protects the right to the “pursuit of happiness and the enjoyment of the gains of our own industry” – Article I Section 2. The end of that very clause says “that to give security to these things is the principal office of government, and that when government does not confer this security, it fails in its chief design.”
Each of our legislators and each judge has sworn an oath to support and defend the constitution. They have obligated themselves to secure the rights of the people of Missouri – including those who want to earn a living with more than 50 dogs. It is their job to interpose on behalf of the victims of the tyranny of the majority. To do less is a violation of their oath of office. They must repeal the unconstitutional portions of Prop B.
The two main characteristics of an American Constitutional Republic:
1) All political power is derived from and vested in the people.
2) We are governed by the Rule of Law, therefore even a majority of voters have no jurisdiction to destroy the constitutional rights of individuals.
The Republic's "checks" on tyranny:
1) The citizen's ballot initiative is one of the checks on the Tyranny of the Few.
2) The Rule of Law (e.g. the constitution) is a check on the Tyranny of the Majority.
The constitution trumps the voter's approval of a statute change which infringes on individual constitutional rights.
The primary role of government is to protect the rights of the people:
Mo Const. Article I, Section 2.
State legislators took an oath to uphold Article I, Sec. 2, therefore they are obligated to repeal the unconstitutional provisions of Prop B -- they have no choice, no matter how their constituents voted on the ballot measure.