There is also the fact that the court had a chance to halt the process earlier this year. It didn’t. To then invalidate the referendum when it won is to suggest that the law here was less important than the politics.
But more than the absurdity of the ruling is the basic principle. The referendum wasn’t just an election; it was the people of Virginia exercising their right to amend their Constitution as they see fit. On what basis can the State Supreme Court, a creature of that Constitution, invalidate a sovereign decision of the whole people? The court may have the right to say what the law is, but this doesn’t extend to a veto over the people’s right to change the fundamental rules of their political system.
One response is to say, as the court majority did, that the people of Virginia failed to abide by the stated process. But this response runs into the fundamental, underlying principle of American government: popular sovereignty.
Here, I’ll yield the floor to James Wilson, the Pennsylvania jurist, legal scholar and delegate to the 1787 Philadelphia Convention. Addressing the Pennsylvania ratifying convention, Wilson observed:
The truth is that, in our governments, the supreme, absolute, and uncontrollable power remains in the people. As our Constitutions are superior to our legislatures, so the people are superior to our Constitutions. Indeed, the superiority, in this last instance, is much greater; for the people possess over our Constitutions control in act, as well as in right. The consequence is, that the people may change the Constitutions whenever and however they please. This is a right of which no positive institution can ever deprive them.
Critically, it was under this exact theory that Americans wiped away the Articles of Confederation in favor of the Constitution. “These important truths, sir, are far from being merely speculative,” Wilson said. “We, at this moment, speak and deliberate under their immediate and benign influence.”
Virginians spoke and deliberated under their influence as well. They took for granted that they, the people of the commonwealth, had an absolute right to amend their Constitution as they saw fit. A narrow, partisan majority of the State Supreme Court believes that the people overstepped their bounds.
