Today's hot button issue is the recent California Supreme Court ruling that any law limiting marriage to one man and one woman is discriminatory, and therefore has opened the way for gay marriage in California. If you haven't heard about it, you will.
I'm not going to address the gay marriage issue. It's one of those things that, like abortion, never gets solved. It can be argued all day and no one will change their position or see any merit in the arguments of the other side. We all have our own opinion on it and our opinion doesn't matter to California because the people of California have already settled the issue. In 2000, the voters went to the polls and voted to define marriage as a union between one man and one woman. The matter was concluded, or at least it should have been. So if you support or oppose gay marriage, I don't care. That's not the issue here.
The issue at hand regards who or what holds absolute power in this country. If you want to join in the discussion, it begins with this simple question: Do Americans have the right to govern themselves?
The Californistan Supreme Court looked at the law created by the people and had to decide whether or not it was Constitutional. For most people, the answer would be clear after reading the first 3 words of the Constitution...We The People. That would do it for me, but not for the 4 activists that apparently sit on the court.
The Constitution begins with We The People. It does not say we the courts, or we the judges, or we the congress or we the politicians. It says We The People. We are the ones who established the law, we are the ones who govern this land. Granted, we appoint people to establish, enforce and interpret the law on our behalf, but the ultimate authority belongs to We The People, and there is no governmental or judicial entity with the power to dispute or overturn that authority. This is a very basic, yet critical premise for our democracy.
In 2000, the people of California established, by majority rule, a law regarding marriage. Millions voted. Today, four individual judges determined that those who voted were wrong, and overturned the will of the people based on, of all things, the argument that their will was unConstitutional. The way I see it, there is nothing more unConstitutional than four people overturning the will of millions, yet that's exactly what happened. And despite how you personally feel about gay marriage, the idea that four people wrongly exercise a perceived power and over-rule the majority should be disturbing to all. Today you may agree with their opinion, but what happens when you don't agree? Four judges do not, and should never, have the power to over-rule the people. Every time that happens, our democracy weakens.
The people of California have spoken. They have determined how to define marriage for their state. That simple fact is what makes it Constitutional. The law is not discriminatory because the people have said so, and it's the people who have ultimate and absolute authority in this country.
16 comments:
spot on John!...the points u make are well taken indeed..the judges own our country!!
And to compound the issue, the Justices (who are initially appointed) only come up for "retention votes" every 12 years. I guess the Justices are banking on the voters having short memories. --Deano
Doc,
There is a fundamental flaw in your reasoning. Simply put, the people's preferences, even if codified by referendum, will be judicially abjured if they unconstitutional.
I agree, let's not talk about gay marriage, but let us change the facts. Supposing a majority of people in a state decided that people of color should not be allowed to vote? Or that women should not be allowed to own real property? Or, as was in the news recently owing to the death of Mildred Loving, that people of different races should not be allowed to marry. Remember that until 41 years ago, that was the law in state of Virginia. Thatwas w/in my lifetime and may also have been w/in yours.
I know anyone's reaction to the first two propositions is: "That would never happen" and I am inclined to agree.
The process of redctio ad absurdem is useful, however, to demonstrate that the proposition that you suggest, which amounts to "the people have spoken" has limitations. Those limitations are constitutional ones which necessarily are detemined by the judiciary.
Regards,
TLGK
I think we have a big of problem with judges legislating from the bench. It's a very tight rope they walk and it is very easy to fall off.
However, our government was formulated with three branches to provide checks and balances. It is not all accomplished with one branch.
Which I think is what TLGK described quite well. The California Justices have served as a check to balance the power of the Legislative branch, which went too far in creating laws.
Thank God for our checks and balances.
Dan,
My understanding is that the CA SC overturned a referundum that passed by the CA electorate in 2000. The checks and balances process is the same as if the law had been passed by the legislature.
TLGK
Dan,
I guess I wasn't clear-- common failing of mine. I was agreeing with Loop, while stating that I believe that we are having a problem with some judges legislating from the bench.
A variety of responses, some of which were typical from our left-leaning readers. I expected no less.
My suspicion is that Loop and Dan support this ruling because they also support gay marriage. My suspicion is that if this were an issue they didn't support (ie, the SCOTUS ruling on the election of 2000) they would be able to see the logic in my argument. Absolutes are a rare thing on the Left, which is a dangerous way to run a country. My suspicion is that any counter-argument I make will be fruitless, but I simply can't allow someone to invoke "checks and balances" as a means of subverting the will of the people. I seriously doubt that's what the Founders had in mind.
Dan, checks and balances is a good thing, but it applies to the 3 branches of our government which serve WE THE PEOPLE. The people are not grouped as a branch of our government because the people ARE the governing body. The 3 branches report to us, we have ultimate authority. The 3 branches have a certain degree of power and they check and balance each other, but there is nothing that should check or balance the people. In short, we're the boss and what we say goes.
Saying that WE THE PEOPLE are just another portion of the legislative branch is absurd. That kind of thinking would actually allow the President to veto an election, if the people decided to vote that person out of office. I'm sure you wouldn't agree with that.
If you believe that a governmental entity holds check/balance power over the people then you basically redefine America into something that is NOT a democracy, and you grant way too much power to the government, another dangerous thing.
Then, do you disagree with Loop's astute observation:
to demonstrate that the proposition that you suggest, which amounts to "the people have spoken" has limitations.
Do you think "the people have spoken" has NO limitations?
I suspect we all agree on that point, at least.
Doc,
Thank you for the comment b/c you have defined yourself in away that I have been trying to articulate, at least in my own mind, but heretofore have been unable to do so. You wrote: "Absolutes are a rare thing on the left..." and when you did, the light bulb went on in my head.
The good doctor is an Absolutist.
I make no judgment here.
As for the CA SC, I also make no judgemmnt regardiing gay marriage but point out merely that the "the people have spoken" has limitations which are proscribed by our state and federal constititions.
I have previously questioned your self characterization as a "Federalist" or perhaps you stated that you believd in Federalism. Do you wish to re examone that?
TLGK
I agree with JW here: If we didn't have activist judges, We The People four score and seven years ago could have overturned one mans decision to make slavery illegal nationwide. It's a travesty when political leaders and judges take the law into their own definition of Constitionality.
An overwhelming majority of Californians also voted for legalized medical marijuana. One man: George W. Bush has said that he'll have doctors and patients brought to federal justice.
Smoking marijuana for medical purposes, or any other purposes is in accord with Constitutional law. Taking away peoples rights should never even be put on a ballot.
The Constitution is a VERY liberal document.
Anonimity should be Over-ruled! reb
No, I don't believe that the "people have spoken" has limits. If California wants to legalize marijuana, then so be it. If that collides with federal law then I'm sure the Feds have ways to squeeze California into compliance (ie, see the federal speed limit laws).
Loop, your example doesn't fit because the people have already decided, by Constitutional amendment, the issues of slavery and civil rights. Those issues are closed. So a state's voters can't vote to legalize slavery today.
Marriage is something that has not yet been defined by law, so the people of California decided to do just that. THere is nothing in the state or federal Constitution that conflicts with this, that is until the judges "interpret" such conflict in how they read it.
Our founders feared the judicial branch would have too much power, and those fears have been realized. The people of California very much have a right to define marriage however they want
John,
I am uncertain what history books you have read. The FF did not so much fear an overreaching juducial branch as they feared an overreaching executive branch. Think about their collective experience w/ the crown.
The judicial branch is called upon to interpret cases or laws of first impression. When it does so, it is not "activist" it is merely fulfilling its function.
If you do not like the examples of slavery and civil rights, see Loving vs. VA. The VA law prohibited marriages between people of different races. Suppose the CA amendmnet did that. "The people have spoken...?"
TLGK
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It's amazing how many old 'hipsters' suddenly developed Glacoma in The Land of Fruits & Nuts when California legalized the notion of "Medical Marihuana".
Peace baby! reb
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www.lazyonebenn.blogspot.com
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