Today the California Supreme Court upheld Proposition 8, the amendment to the California Constitution defining marriage as between one man and one woman. I am grateful the election results were upheld. I am deeply concerned, however that the the vote itself (a second state-wide vote on the same issue – and with the same results), was not considered conclusive enough to bring the matter to a close. Instead all of California held its collective breath to see whether or not the court system would overrule the clear will of the majority of California voters. It is indicative of the degree to which people virtually expect judicial activism as a part of the political process. It is also indicative of the fact that the will of the majority can be and has been thwarted by a small handful of individuals, sometimes just one person, appointed to the bench. This, in my opinion, is not a good thing.
No matter your position on the subject of gay marriage today’s decision was an affirmation of the electoral process and for that I am grateful.
May 26th, 2009 1:11 pm
Would you be okay if the voters made slavery legal? Or took away the right for interracial marriage?
I mean… as long as the majority votes for something, its okay, right?
May 26th, 2009 1:46 pm
Dave
You have missed the point entirely. And if you are trying to equate the two absurd examples you gave with Prop 8 then there is no place to go with this. And I won’t bother to respond to the absurdity of that equation. Of course all law is subject to constitutional scrutiny and that is one of the duties of the judicial branch of government. But the left long ago discovered they could obtain through sympathetic and activist judges what would NEVER have been approved by the voters. My comments here are a deep sigh of relief that such did not happen in this case.
By the way, here is something equally absurd: Are you OK with 5 judges deciding to make slavery legal, or take away the right for interracial marriage? Because it seems to me MUCH more likely that such absurdities could become law in that manner than in a vote of the people. Want proof? Once upon a time 7 men decided it is a constitutional right to kill unborn children. Maybe some day this tragedy will join your two examples in the category of the absurd.
May 26th, 2009 8:35 pm
So you choose to not answer the question. Why is that?
This is what you originally said:
You clearly imply that because something was approved by a democratic vote, then it must be enough. You go on to talk about the majority being thwarted, etc.
Yet there are very obvious instances where this is simply not true. But because these instances don’t fit within your agenda, you choose to ignore them.
I would bet lots of money that gay marriage can and WILL be approved by the voters.
May 26th, 2009 9:04 pm
Dave, I note that while accusing amuzikman of ducking your question, you ducked this one:
That’s because you chose to interpret amuzikman’s original post as if he did not believe in a consitution, historically interpreted, protecting minority rights, which he clearly does.
And maybe also because the answer to his question would reveal the silliness in yours…
May 26th, 2009 9:28 pm
Dave
Did you really intend it to be a serious question deserving of a serious answer? I was assuming your point was rhetorical. Do you imagine enough people in this, or any state signing petitions to have a pro-slavery proposition placed on the state ballot? Do you claim that this is plausible? Are you aware of what goes into preparing a state proposition before it ever reaches the ballot box? I didn’t directly answer it because I gave you more credit than that.
And as far as implication is concerned, you seem to take issue with my statement that the results of a duly authorized democratic election should “be enough”. Therefore I can only surmise that you are trying to “clearly imply” having an issue decided by election is “not enough”. What more do you think there should be? And what does that say about your “agenda”?
In spite of your efforts to change the subject I must remind you this posting was not about gay marriage, it was about the electoral process. I am glad the process was upheld, I am sorry we as voting citizens have come to expect the judiciary will, in my opinion, too often assert powers they were never intended to have to affect election outcomes. Now if you can discern my “agenda” (nice hot-button word, used to imply some sort of negative dogmatic attitude) from that – well, help yourself.
By the way, I can’t help but notice you ignored my question to you entirely. Why is that?
May 27th, 2009 11:17 am
Well… he clearly didn’t communicate that in this post. He actually said, quite clearly, that a vote was enough. And I find that to be completely untrue.
Votes are not enough to be the final answer in a situation where the majority votes away rights of a minority group.
I didn’t answer amuzikman’s question because there is no constitutional basis for allowing slavery or banning interracial marriage.
I think that a majority vote should be overturned if that majority vote creates a law that is unconstitutional. You seem to imply that if a majority decides something, it should be so, regardless of its constitutionality.
I didn’t change the subject… I challenged your assertion that the electoral process should be the final say on an issue.
May 27th, 2009 11:57 am
Dave
I also acknowledged a state ballot initiative does not just “magically” appear – a point you chose to ignore.
In your case I apparently made too many assumptions concerning a baseline level of background knowledge and understanding.
Your non-answer is hypocritical at best since you were so quick to accuse me of dodging your original question. And if you already knew there was no constitutional basis for allowing slavery or banning interracial marriage then why bring it up in the first place? Harmonicminer’s characterization of “silly” is one I would agree with.
I have acknowledged there is always a constitutional litmus test for new laws. Another point you chose to ignore. But it does make me curious – since you seem so concerned about constitutionality, I can’t help but wonder how you, an Obama supporter, feel about his apparent disregard for constitutionally-mandated limitations on the powers of the presidency.
What is your authority or standard for defining a “right”? And if the majority vote in favor of one thing as opposed to another isn’t that called democracy? We have many laws that favor the interests of the majority over that of the minority. In each case would you characterize the minority as a group who’s rights were “voted away”? For example: California has laws concerning pedophilia. Has enacting these laws taken “away” the “rights” of adult males to have sex with boys?
Who decides when votes are “enough” or “not enough”. The losers of the vote? The ones who protest the loudest? Engage in the most civil disobedience? The ones who make plans for judicial challenges to new laws even before a vote has taken place, just in case the vote doesn’t go their way?
And finally – you claim gay marriage can and will be approved by the voters. If it eventually is approved, then should the electoral process be the final say on that issue? What would you be saying to me if Prop 8 had been voted down but was challenged in the courts?
May 27th, 2009 12:12 pm
Yes… I know where state ballot initiatives come from.
Huh? This makes no sense. My point is that voters can vote for something and it can still be unconstitutional.
Sure… and then you go on to talk about how votes are enough.’
Yes… of course, we don’t live in a democracy, and our laws are not decided by purely democratic principles. So I am not sure what your point is.
Where did I say that?
The courts.
I would say that there is no constitutional basis that would overturn a law allowing gay marriage.
May 27th, 2009 12:39 pm
And the courts can, by judicial fiat, decide something is constitutional with absolutely no input from the citizens, no recourse for the citizens, no legal precedent and nothing other than their personal bent (or “agenda” as you would say) on the matter. May I suggest you read Men In Black, by Mark Levin. The ability of the very few to overrule the will of the many under the guise of determining constitutionally has a sad and frightening track record. Which brings me back again to the point of my post: I’m sure glad that didn’t happen this time. Have a great day – I’m moving on to other topics.
May 27th, 2009 12:47 pm
Yup… that is pretty much the role of the courts. And it works both ways (“conservative” and “liberal”) depending on the issue.
And if you don’t like it, work to get people elected that will nominate judges that will do what you want.
May 27th, 2009 1:37 pm
By the way… here is a good look at the so-called judicial activism that you implicitly refer to.
May 27th, 2009 4:28 pm
Herein lies the crux of the matter. I could not disagree with you more. Your notion of the role of the court is frightening and it’s logical conclusion is eventual rule by oligarchy. It displays on your part either a willing acquiescence to judicial activism (sometimes referred to as “progressive jurisprudence”, or “judicial development”) or you have an unfortunate ignorance about the specific and limited role of the judiciary in our government as put forth by the framers of our constitution. For if we allow the court to act based on what they think is “right” rather than on what the Constitution actually says then we are on a slippery slope of moral relativism in which no one’s concept of right or wrong become any more or less important than anyone else. And furthermore if we do not hold to the foundation of our constitution, seeking always to divine its original intent when rendering judgment then why should any future generation be compelled to hold to today’s law if we demonstrate a lack of respect for and understanding of laws that were created in previous generations?
Furthermore your statement “it works both ways” is meaningless. Sound rendering of judgment should not be based on an ideology but rather understanding of the law as established by our constitution and without prejudice. It is simply a sad commentary of our times that you couch this within a political liberal vs conservative framework and that the courts can be seeded with idealogues of either party based on who happens to be president at the time. Unfortunately the strict constitutionalist has no home in today’s left, for the very reasons I have stated. The left is much more interested using the courts to advance a political agenda and in such a way that is as immune as possible from those pesky things we call elections.
Furthermore I have absolutely no desire to see to it that any judge is nominated who will “do what I want”. (I’m afraid you have shown your true colors here) Any time I go to court, or am represented in court I understand there will be at least one other individual or group who “wants” something different. It is by its very nature a conflict that requires resolution, hence the need for a court system. The only thing I want is to know that the judge or judges rendering a judgment will do so solely according to a strict, consistent constitutional standard, and not because of what someone happens to think is “right” or because of their ethnic background or because of my ethnic background or because I am a Christian, or because they have empathy for my plight, etc etc etc.
May 27th, 2009 6:20 pm
Or the right. It just depends on the issue. You can pretend that it is otherwise, or that it is an indictment on me, but you and I both know how the courts work, and it isn’t the idealized state that you claim it to be.
Come on… it is not about how I couch it. It is simply how the courts work. Every judge in this country has to interpret the law; in turn, every judge has their own context in which they interpret the law. There is almost ALWAYS leeway and gray areas within the law, and different judges will come to different conclusions about what that gray means. If it were as black and white as you make it out to be, we wouldn’t need judges.
By the way… just curious. Are you opposed to Justice Alito saying that his immigrant experience impacts the way that he judges and rules?
May 27th, 2009 10:11 pm
I agree with you in this respect – The courts frequently do not operate within their constitutionally described framework of specific duties. But again you seem to either misread or misrepresent my position. I claim the exact opposite of what you wrote. What you call “idealized” is NOT what I “claim it to be”, but I think it is an attainable goal. It takes only nominations to the bench of those qualified judges who have proven themselves to be strict constitutionalists, interpreting law according to the best, albeit imperfect interpretation of what the framers had originally intended.
I don’t know what you mean when you say every judge has their own “context” in which they interpret the law. If you mean life experience, of course every individual person’s story is unique. If you mean every judge has a different authority upon which they base their legal renderings then I say that is a big problem and I have already explained why.
Yes, every judge must interpret the law. But again I must ask, what is the authority upon which they make their interpretation? It must be the Constitution only.
The difference between us is that you shrug your shoulders and say “It’s simply how the court works”. This is equivalent to some of the excuses I hear from my adolescent children. “Why should I have to be home by midnight, none of the other parents make their kids come home so early. Everyone comes home late. That’s just the way it is”. It is also the oft spoken mantra about adolescent sex. “Kids are going to have sex, you can’t stop it”. Sorry, I don’t buy it in that context and I don’t buy it when it comes to the judicial branch of our government.
This will be my last response to you, Dave. Your propensity to “cherry-pick” random quotes and ignore the majority of the points I make or my challenges to you is not conducive to any further significant dialogue. I wish you well and I’m sure we’ll “meet” again. Thanks for your participation.