Bergdoll v. Kane ( 1997 )

KELLEY, Judge,

dissenting.

I join Judge Pellegrini’s well-reasoned dissenting opinion. I write separately, however, to express the view that this court, as an arm of the government created by the people of the Commonwealth of Pennsylvania, should refrain from invalidating the amendment to art. I, § 9 of the Pennsylvania Constitution which was approved by the voters at the November 1995 election.

As the Pennsylvania Supreme Court has noted:

The primary purposes of a constitution are to establish a government, define or limit its powers and divide those powers among its parts.... The United States Constitution established a government of limited and enumerated powers. Consequently, the national government possesses only those powers delegated to it.... State constitutions, on the other hand, typically establish governments of general powers, which possess all powers not denied by the state constitution.... Our state constitution functions this way and restrains these general powers by a Declaration of Rights....

The Pennsylvania Constitution of 1776, our first post-colonial constitution, illustrates Pennsylvania’s basic constitutional scheme. It contains two parts: one which establishes a government and one which limits its powers. The first part, titled Declaration of Rights of Inhabitants of the Commonwealth or State of Pennsylvania, contains most of the language found in our present Article I. The second, titled Plan or Frame of Government for the Commonwealth or State of Pennsylvania, establishes a governmental system. This simple two-part format in itself evinces the draftsmen’s intent to establish a government and to limit its powers.

Western Pennsylvania Socialist Workers 1982 Campaign v. Connecticut General Life Insurance Company, 512 Pa. 23, 28-29, 515 A.2d 1331, 1334 (1986) (citations omitted). See also Monongahela Navigation Company v. Coons, 6 Watts & Serg. 101, 117 (1843) (Huston, J., dissenting) (“There is, and must be, an unlimited power, on certain subjects, in every government; and it is often right, and often practised by the Legislature, to act on this principle. The use of a written Constitution is to fix limits to this otherwise absolute power; and in this sense peculiarly it is the supreme law of the land. Whatever is absolutely prohibited or positively enjoined cannot be altered until the Constitution is changed by the people, or by a revolution.”)

As our Supreme Court has also noted:

The Constitution sets forth those rights and powers inherent in the people that are delegated to government and those powers which are reserved and retained by the people. In a sense, it is a power of attorney by the people to their designated officials acting as agents for the people and delineating the authority granted and the rights reserved. The provisions of a constitution specifying the rights reserved and retained by the people are generally referred to as the ‘Bill of Rights’ or in Pennsylvania the ‘Declaration of Rights’....

Unless there is a federally protected right offended, the people, by way of amendment, are free to convey a power to their government if they choose to do so.... This view is reinforced by Article I, section 2 [of the Pennsylvania Constitution], which provides:

§ 2. Political powers

All power is inherent in the people, and all free governments are founded on their authority and instituted for their peace, safety and happiness. For the advancement of these ends they have at all times an inalienable and indefeasible right to alter, reform or abolish their government in such manner as they may think proper. Pa. Const, art. I, § 2.

Section 2 expressly recognizes the inherent power of the people reserved in Article I as well as their “indefeasible right to alter, reform or abolish their government in such manner as they may think proper”_

The restraint imposed under Article I is not upon the people in forming their government, but rather upon the government in the discharging of its functions. Restated, Article I does not restrain the power of the people, it restrains the governmental structure that the people have created.... In forming the government of this Commonwealth, the only restraint upon the people is that imposed under our federal constitution.

Gondelman v. Commonwealth, 520 Pa. 451, 467-69, 554 A.2d 896, 904-05 (1989) (citations omitted).

In the instant case, the Petitioners have not, and cannot, argue that the amendment which was approved by the people of this Commonwealth offends a federally protected right. As a result, the citizens of Pennsylvania were free to adopt this change to the basic structure of their government under art. I, § 2 of the Pennsylvania Constitution. Gondelman. The voters properly exercised their “inalienable and indefeasible right” to alter the form of their government by adopting the amendment to art. I, § 9 of the Pennsylvania Constitution at the November 1995 election. It is the function and the duty of this court, as an arm of that government, to accede to their instructions.

Accordingly, I respectfully dissent.