Thursday, October 15, 2009

A Government of Men and Not of Laws

On September 23, the Massachusetts State Legislature passed a bill to permit an interim replacement for the late Senator Kennedy until special elections can be held in January. Governor Patrick quickly signed it and named Paul Kirk to fill the vacancy.

The trouble with this appointment was that it was unconstitutional.

The Massachusetts State Constitution states, “No law passed by the general court shall take effect earlier than ninety days after it has become a law, excepting laws declared to be emergency laws and laws which may not be made the subject of a referendum petition.” It goes on to lay out two procedures for declaring an emergency and skipping the 90 day waiting period:

1. The State Legislature can add an emergency preamble to the bill. The legislature attempted this, but did not get the 2/3 vote required by the Constitution.

2. If the operation of the bill has been suspended because it is the subject of a referendum, the Governor can declare an emergency to unsuspend it. The bill was not the subject of a referendum.

Bay State Republicans turned to the judiciary to obtain an injunction blocking the appointment. Judge Thomas Connolly of the Suffolk Superior Court denied the injunction on the grounds that, even though the bill was not the subject of a referendum, it could be.

In making this argument, Judge Connolly’s committed the fallacy of confusing the potential with the actual. Just because something could be it does not follow that it is. This is a fundamental concept in philosophy, going back 23 centuries to the works of Aristotle.

In ignoring the law, Judge Connolly not only overturned a fundamental concept in philosophy. He also overturned a fundamental concept in the American legal system – that it be a “government of laws and not of men”. Ironically, the document that gave us that phrase was the very law Judge Connolly ignored: the Massachusetts State Constitution.

The Logic Critic gives Thomas Connolly…

Genuine and structured reasoning, but with fallacies or factual errors in main argument.2 Blades - Wrong.

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