Wednesday, October 27, 2010
Mississippi Circuit Court Judge Malcolm Harrison ruled yesterday that a ballot initiative to define "person" did not violate a state constitutional provision that prohibits the use of initiatives to modify the state Bill of Rights. (Clarionledger.com reports here.)
Section 33. Person defined. As used in this Article III of the state constitution, "The term 'person' or 'persons' shall include every human being from the moment of fertilization, cloning, or the functional equivalent thereof."
The measure would add Section 33 to the Mississippi Constitution Bill of Rights (Article III of the state constitution).
But Section 273(5)(a) of the constitution prohibits the use of the initiative to amend the state Bill of Rights:
(5) The initiative process shall not be used . . . [f]or the proposal, modification or repeal of any portion of the Bill of Rights of this Constitution.
Thus plaintiffs in the case argued that the initiative was unconstitutional. Judge Harrison disagreed. In a remarkably short order, apparently dodging the plaintiffs' constitutional claim, he wrote (without citation):
Plaintiffs carry a heavy burden in attempting to restrict the citizenry's right to amend the Constitution. Initiative Measure No. 26 has received more than the required amount of signatures to be placed on the ballot and the Constitution recognizes the right of citizens to amend their Constitution. The Court finds plaintiffs have not met their burden.
The order's analysis seems surprising for a variety of reasons, not least of which this: Subsection (5)(a) is pretty clear; and the Mississippi Supreme Court and state attorney general seem to think that other, similarly clear subsections in Section 273 basically mean what they say.
The case is likely headed to the Mississippi Supreme Court.