The phrase "great news" has lost its meaning if it can be applied to the California Supreme Court's decision to overturn a law that was passed by the people of California. How is it great news that the people had their power circumvented by judges who are appointed--not elected, nor accountable in any way to the people of California?
It is good and necessary that our Judges not be subject to popular election, since it is not uncommon for a court's decision to be legally necessary but popularly disastrous (e.g. acquitting a serial killer when the prosecution fails to prove the killer's guilt "beyond a reasonable doubt"--the standard of proof in criminal trials). An independent judiciary is necessary to prevent the same waffling that almost every politician exercises, when he hops from one platform to the opposite at the beck of his constituents.
But Judicial Review--the power of a court to overturn a law because of "unconstitutionality", is both unnecessary and dangerous. It is unnecessary because, although a bad law may be passed by Congress, the People of the United States always have the option of electing a different Congress in a few years who will overturn the law. That is to say nothing of the President's power to veto legislation, although his veto can be overridden by the unlikely 2/3 majority of both the House and the Senate.
Judicial review is dangerous because, although a limited power of review could be helpful in striking down blatantly unconstitutional laws (e.g. a law that extended the President's term from 4 years to 10), it is still a slippery slope. As American judicial history has shown, the kind of laws that get struck down for their unconstitutionality have become less and less obviously unconsitutional, and more and more a matter of "conviction"--the judges "just know" that a law is unjust (and perhaps the People just know that too--but that is irrelevant, because their opinions are voiced by Congress, NOT by the Judicial branch of the government).
Why does it matter whether the Courts or the Congress decides, as long as they make the right decision? In a word, Democracy. We pledge allegiance to "the Republic", a representative form of Democracy. "We the People" chose that form of government, in retaliation to a tyrant monarch who demanded unquestioned allegiance. We do not pledge allegiance to "the Oligarchy" (rule by a few), and thank God that we don't!
Admittedly, the doctrine of Judicial Review is not likely to be overturned, but we can still hope that its power may be more narrowly defined (perhaps by a constitutional amendment). But let's not call the usurpation of a democratically enabled law (such as a ban on gay marriage) "great news" unless we are ready to be ruled by a 9-person panel of justices who will hold their offices for the duration of their life, whether we like it or not (i.e. the US Supreme Court). If anyone would prefer to live under such a system, I call him or her undemocratic, and a traitor to the principles of our great Constitution. And I call him a traitor to "the People", who created our Constitution and by whose consent we continue to enjoy the bounteous fruits of our Great Nation.
-Brother Carlotta
Posted by pooka (Member # 5003) on :
Welcome to Hatrack.
I keep meaning to look up Marbury v. Madison.
Maybe deep down I don't feel like it.
Posted by Bokonon (Member # 480) on :
Moving to this thread:
A) You know that the California Supreme Court ruled based on the CA state constitution, not the US constitution?
B) What do you say about the gov. of CA vetoing several attempts of the legislature to pass a law extending marriage to same-sex couples in prior years?
BTW, does this mean that we should decry justices from overturning Roe v. Wade, since that is the current law, and to do so is unfair judicial review?
-Bok
Posted by ambyr (Member # 7616) on :
quote:The phrase "great news" has lost its meaning if it can be applied to the California Supreme Court's decision to overturn a law that was passed by the democratically-elected legislature of California.
One can certainly quibble with judicial review if one wishes, but not on those grounds in this case.
[eta=Meh, Bok beat me to it.]
Posted by fugu13 (Member # 2859) on :
As was pointed out in the thread you're drawing on, the California legislature twice passed laws recently allowing same sex marriage, only to be vetoed by the governor.
From Lisa's post on the first page:
quote: And in fact, the California legislature has since then passed a law legalizing same sex marriage. Twice, in fact. The governor vetoed it both times.
Critics of this decision can't say, "This should have been done by the legislature", because the legislature did do it. The actual effect of this ruling turns out to be no more than the overturning of a governor's veto. Same sex marriage enjoys popular support in California through the elected law makers. Now a second of the three branches of California government is getting behind it, and they're doing it for the simple reason that the discriminatory ban against it is, in their view, contrary to the terms of the California constitution.
And, in fact, Schwarzenegger's stance when he vetoed was that he wanted the court to decide:
quote:Schwarzenegger said the ultimate decision will be made by a court.
So it seems all three branches of the California state gov't are now in concurrence about same sex marriage. Why are you viewing this as a usurpation of power?
Posted by Brother Carlotta (Member # 11629) on :
I edited my post, and then I saw that there were already three replies. How wonderful that OSC's fora are so popular!
To ambyr, I mistakenly thought that CA's legislature had passed the ban, when in fact it was passed in a referendum by the people of California. Thank you for pointing out my error.
However, the fact that it was the people who passed this ban only strengthens the case against the CA Supreme Court--this was more than a usurpation of legislature (admittedly, the legislature attempted to pass a law allowing gay marriage), it was a slap in the face to a ban that passed by pure democratic vote!
pooka, thank you for the welcome! This was my first post, and it's great to be here. Marbury v Madison is indeed the case to which scholars trace the origin of the doctrine of judicial review--and quite an old case at that. And I do not argue that judicial review as understood in Marbury v Madison is undemocratic--I'm arguing against the tremendous expansion of that power we have seen take place in the intervening 205 years.
Posted by MrSquicky (Member # 1802) on :
The doctrine of individual rights that stand against the democratic will of the majority is one of the cornerstones of our government. In the system of checks and balances envisioned by the architects of our Constitution, protecting these rights against encroachment by the Legislative or Executive branches, avoiding both "the tyranny of majority" and just a plain tyrant, was one of the major roles of the Judicial branch.
Our system of government is not adequately described as a pure democracy or republic. If you remove the concept of it being constitutional, of certain rights superceding the will of the majority, you are describing a different (and, in my opinion, much worse) form of government.
Posted by Tresopax (Member # 1063) on :
The "Republic" that we pledge allegiance to is not a pure democracy. The Founders intentionally balanced the democratic elements of it with undemocratic elements in order to prevent a tyranny of the mob. I believe they were wise to do so. I'd rather not have the masses able to do whatever they want to me.
Is there any good reason to believe pure democracy would result in a better governed nation?
Posted by Brother Carlotta (Member # 11629) on :
Thank you for your question, fugu13. Indeed, there is absolutely nothing wrong or undemocratic with legislature passing laws, or with the governor vetoing them (or with the governor agreeing with them--whatever Schwarzenegger's stance may be). But my issue is not with the legislature trying to pass pro-gay-marriage laws, nor with the governor's vetoing:
I take issue with the CA Supreme Court circumventing a referendum passed democratically by Californians. For a court to contradict a purely democratic decision of its people is counter-democratic in the extreme. Let me also say, though, that the Courts are well known for contradicting the will of the people as expressed by the legislature too. For instance, Dred Scott v. Sandford, or Brown v. Board of Education (as Irami Osei-Frimpong pointed out in the thread from earlier today). So even if this case in California does not involve Courts overruling the CA Legislature, it nonetheless involves improper judicial activism.
Posted by MrSquicky (Member # 1802) on :
BC, We - thank sweet caramel coated Jebus - don't live in a pure democracy. It is the courts' explicitly defined role to be undemocratic (edit:)and, in cases where the will of majority is to violate reserved individual rights, counter-democratic. This is one of the beautiful things about our system of government.
[ May 29, 2008, 01:28 PM: Message edited by: MrSquicky ]
Posted by scifibum (Member # 7625) on :
quote:For a court to contradict a purely democratic decision of its people is counter-democratic in the extreme.
So is the concept of individual rights that supercede the will of the majority.
Posted by fugu13 (Member # 2859) on :
The court was required to compare two sources of law, both from the people: the Constitution of California, and a ballot initiative with the force of legislative act. After comparing them in depth, they determined that the ballot initiative made something illegal that the Constitution guaranteed would be legal. As the Constitution has a greater force of law (and was decided by rather more consensus among the people), it won.
Deciding the other way would have been invalidating a much more important democratic decision of the people: the California Constitution.
Posted by Bokonon (Member # 480) on :
They didn't circumvent the referendum. Presumably the state constitution is held to have priority over referendums. As such, the court decided (rightly or wrongly) that the state constitution overruled the referendum.
The court didn't overrule the referendum, the state constitution did. The court merely affirmed that the constitution overruled the referendum. And the people have recourse to change that, so I disagree that there was any usurpation of anything involved.
BTW, my Roe v. Wade example was poorly chosen, so I withdraw it.
-Bok
Posted by Brother Carlotta (Member # 11629) on :
Mr Squicky & Tresopax, I do not argue for a pure democracy, and I am very happy to live under a government of checks and balances. I am not arguing against the third branch of government--the judiciary. The "violence of the majority," as Alexander Hamilton called it (Fed. Papers 10), is perhaps better than Oligarchy, but not by much.
There is a need for stability in government, which the drafters of our Constitution recognized and provided for. Hence we have senators with 6-year terms, presidents with 4-year terms, and US Representatives with 2-year terms. It would be disastrous if our government were subject to constant democratic evaluation. Every time an unpopular decision was made that sufficiently angered the majority of US citizens, we would remove our Congresspeople and President, and furnish new ones, who would do whatever we told them. And it would happen again that a very unpopular decision would be made, and the result would be a totally ineffective government.
So I do not argue for pure democracy, for which the name "Anarchy of the People" might also be appropriate.
Posted by Bokonon (Member # 480) on :
Will you address what fugu and I have mentioned about the process, and how no circumvention occurred?
-Bok
Posted by Achilles (Member # 7741) on :
I find it hilarious that the losing side of any such decision portrays it as legislating from the bench. Had the decision been reversed, they would revere it.
Hilarious to the point of insanity.
Posted by Brother Carlotta (Member # 11629) on :
scibum, I was referring not to any purely democratic decision made, but to a referendum passed on the state level. I did not mean to say that every decision is best made by a pure majority. As I just wrote in response to Mr Squicky and Tresopax, pure democracy is not viable--certainly not on the national level. But on the state level, I suppose the majority's voice should be heard more clearly and more regularly, as is more possible when it comes to individual states' politics.
Posted by MrSquicky (Member # 1802) on :
BC, Your entire point of contention appears to be that the courts acted undemocratically. But, as has been noted multiple times, acting as they did is their explicitly defined job.
It appears to me the problem you may be having is with the way the governments of the U.S. and the state of California are set up.
Posted by Achilles (Member # 7741) on :
quote:Originally posted by Brother Carlotta: scibum, I was referring not to any purely democratic decision made, but to a referendum passed on the state level. I did not mean to say that every decision is best made by a pure majority. As I just wrote in response to Mr Squicky and Tresopax, pure democracy is not viable--certainly not on the national level. But on the state level, I suppose the majority's voice should be heard more clearly and more regularly, as is more possible when it comes to individual states' politics.
The current majority in the polls does not reflect this idea. The current polls show a support of Gay Marriage at 54% and against at 40% with 6% undecided. At least that's what the last results have been.
An effort to amend our CA constitution will likely fail.
Posted by Brother Carlotta (Member # 11629) on :
Achilles (pronouced Ah-SHEEL? If so, well done!), it's interesting that you accuse me of arguing against judicial review merely because--you assume--I disagree with the CA Supreme Court's decision. I wish I could show you the essay I wrote on my Constitutional Law exam just over two weeks ago (just a couple days before the CA decision came out. In that essay I defended the position that I defend now: namely, that the power of judicial review as fallen far from the tree that bore it (viz. Marbury v. Madison). Would that make my arguments more valid? In any case, you attack is against my character, and not against the merits (if any) of my argument itself.
Again, I must reiterate how joyous it is that OSC's forum receives so much traffic. Even if we disagree about politics, it is somehow wonderful that we find camaraderie through a shared love of find prose.
[ May 29, 2008, 02:11 PM: Message edited by: Brother Carlotta ]
Posted by Achilles (Member # 7741) on :
Thanks, BC. I don't take any arguments personally, and was unaware of your position. I have made a slight assumption there, for which I apologise if it was viewed as a personal attack, and really was intended as a general observation, not a specific one directed at you.
I only quoted that you were talking about a majority, when it was a simple majority, and the current opinion in the state seems to have shifted away from that narrow minded attempt.
Still, if you haven't been welcomed, I'm glad to see you here.
Posted by MightyCow (Member # 9253) on :
quote:Originally posted by Achilles: I find it hilarious that the losing side of any such decision portrays it as legislating from the bench. Had the decision been reversed, they would revere it.
Hilarious to the point of insanity.
Indeed. It always tickles me when people try to find an end-around for their argument.
Had it gone the other way, people would be talking about how the voters were uninformed, and thank goodness the Justices knew to overturn a horrible law allowing gay marriage. Posted by kmbboots (Member # 8576) on :
Achilles, please tell me that you don't pronounce your SN "Ah-SHEEL."
Posted by BlueWizard (Member # 9389) on :
As has already been pointed out, we do not allow the will of the majority to enforce tyranny on the minority. The people can be wrong and the legislature can be wrong, that's why we have the courts to make a determination of right and wrong based on a fix irrefutable standard - The State Constitution.
It seems the people passed a law against gay marriage. But it seems that the legislature has tried to pass a law for gay marriage more than once. Hence, we have a conflict that the governor rightly sent to the courts to be arbitrated.
Now, the courts did not forbid the passing of an law redefining marriage or preventing gay marriage. They simply said that as the State Constitution NOW stands, doing so is against the constitution; the overriding and guiding force of law win society.
In a sense, the court was showing the citizens the correct path to achieving their goal. First you amend the Constitution to allow such a law, then you a pass the law.
However, when you start altering the Constitution, the most fundamental statement of rights and responsibilities, you are entering dangerous territory. If it can be so easily altered it to the whims of current society, then it really has no meaning. If it is not, within limits, an irrefutable immutable statement of citizen rights and responsibilities, then it is nothing but a tool of those with power, whether by force or wealth or by majority, to bring tyranny and oppression against others.
As I have said in the other thread on gay marriage, this is not about your personal beliefs. It is not about the will of the majority or the will of the legislature. It is about whether it is right or wrong for society to select an otherwise law abiding group of people, and diminish their rights simply because you don't like them.
If 'you don't like them' is all we need to deny rights, then, since my grandmother doesn't like Swedes, Swedes won't have rights. Many people don't like Jews, so Jews won't have full right. People don't like Blacks or Hispanics, so they will have their full rights denied. Some people don't like Catholics, so they will have their rights denied. And where does it stop? There is always someone who doesn't like someone, so in the end, we have all lost our rights. Though likely the rich and powerful will have found some loophole to insure their own rights.
The Court denied the 'People's Law' because the people's law was wrong. Simple as that. The court then showed the people the proper way to proceed to get their will into force of law. That is the court's duty and responsibility in a free and fair society.
Steve/bluewizard
Posted by Achilles (Member # 7741) on :
I do. But let me put that in the context to which I created this particular SN:
I am old-fashioned enough to prefer the non-weird pronunciation.
Posted by Brother Carlotta (Member # 11629) on :
Thank you for your welcoming, Achilles. I did not believe you bore me any ill will, but I am glad to hear you say it. The freedom of civil discourse is one of the greatest gifts God has blessed us with in America, I believe.
Blue Wizard, thank you for your analysis. I think you beg the question when you write:
quote:As I have said in the other thread on gay marriage, this is not about your personal beliefs. It is not about the will of the majority or the will of the legislature. It is about whether it is right or wrong for society to select an otherwise law abiding group of people, and diminish their rights simply because you don't like them.
Just as the CA Supreme Court, you assume that there is a "right to marry". I think that assertion presents two questions:
1. If there is a right to marry, where did it come from?
2. What does "marry" mean, and how do you know?
I know my answer to those questions, but I would be interested in hearing yours, Blue Wizard. Posted by Brother Carlotta (Member # 11629) on :
kmboots, I only mentioned it because I just listened to (yes, listened to) Shadow of the Hegemon, and OSC made a point that the name was pronounced according to the French mode. But as long as we know who we're talking about, I'm content. :-)
Posted by MrSquicky (Member # 1802) on :
BC, It seems to me that you are moving away from your earlier statements without addressing people's refutations of them. Are you planning on addressing people's responses?
Posted by Lisa (Member # 8384) on :
quote:Originally posted by scifibum:
quote:For a court to contradict a purely democratic decision of its people is counter-democratic in the extreme.
So is the concept of individual rights that supercede the will of the majority.
Not so. That's what constitutional protections are all about. They protect us from majorities and they protect us from the government.
A majority can't vote that the national religion is Christianity (as much as some Christians would dearly love to do so).
I think Californians are out of their gourd having a mechanism where a popular vote can have quasi-constitutional power that prevents the legislature from legislating, but that's what they did in this case. Nevertheless, it's still subordinate to the California constitution, and when three branches of the government (two elected and one appointed and confirmed by those two) come to the sense that this sort of discrimination has to end, that's the end of it. If the voters of California don't like it, they have a remedy. There's going to be a constitutional amendment on the ballot in November. Until then, this was the right decision.
Posted by ricree101 (Member # 7749) on :
quote:Originally posted by Achilles: I do. But let me put that in the context to which I created this particular SN:
As a side note, it's kind of strange now to read a topic from back when OSC used to post here somewhat regularly.
Posted by Achilles (Member # 7741) on :
This place seems pretty strange to me today. Not that it won't cycle back around again, but I don't think I'd have been attracted here as I was originally in, what? 2003?
Posted by Javert (Member # 3076) on :
quote:Originally posted by Brother Carlotta: 1. If there is a right to marry, where did it come from?
2. What does "marry" mean, and how do you know?
1. The federal and state governments.
2. The legal status or relationship that results from a contract by which two citizens promise to live together as spouses for life, or until the legal termination of the relationship.
I know because the government has determined that to be the definition.
Some argue it should be "one man and one woman" and not "two people". But again, as same sex relationships are not outlawed, and none of the actions taken in same sex relationships are illegal, there is no reason to keep them from marriage.
Posted by rivka (Member # 4859) on :
quote:Originally posted by kmbboots: I am old-fashioned enough to prefer the non-weird pronunciation.
Or English-centric enough. It's a perfectly legitimate pronunciation, used in all French-speaking countries.
I say it the English way in most contexts; in OSC-related contexts (like here) I assume the French pronunciation applies.
Posted by Javert (Member # 3076) on :
quote:Originally posted by rivka:
quote:Originally posted by kmbboots: I am old-fashioned enough to prefer the non-weird pronunciation.
Or English-centric enough. It's a perfectly legitimate pronunciation, used in all French-speaking countries.
I say it the English way in most contexts; in OSC-related contexts (like here) I assume the French pronunciation applies.
I have the same difficulty with Cicero and Caesar. (There should be Hatrackers with those names, if there aren't already.) The original latin gives them hard-c pronunciations. But I can't do it.
Posted by Telperion the Silver (Member # 6074) on :
quote:The phrase "great news" has lost its meaning if it can be applied to the California Supreme Court's decision to overturn a law that was passed by the people of California. How is it great news that the people had their power circumvented by judges who are appointed--not elected, nor accountable in any way to the people of California?
You know...
Freaking SLAVERY was the POPULAR choice back in the day (as were hundreds of other horrible things). Sometimes the popular vote SHOULD NOT be the deciding factor in civil rights. Posted by scifibum (Member # 7625) on :
quote:Originally posted by Lisa:
quote:Originally posted by scifibum:
quote:For a court to contradict a purely democratic decision of its people is counter-democratic in the extreme.
So is the concept of individual rights that supercede the will of the majority.
Not so. That's what constitutional protections are all about. They protect us from majorities and they protect us from the government.
A majority can't vote that the national religion is Christianity (as much as some Christians would dearly love to do so).
I think Californians are out of their gourd having a mechanism where a popular vote can have quasi-constitutional power that prevents the legislature from legislating, but that's what they did in this case. Nevertheless, it's still subordinate to the California constitution, and when three branches of the government (two elected and one appointed and confirmed by those two) come to the sense that this sort of discrimination has to end, that's the end of it. If the voters of California don't like it, they have a remedy. There's going to be a constitutional amendment on the ballot in November. Until then, this was the right decision.
I didn't mean what I think you thought I meant. I meant that it's good to have limits on what democratic majority can accomplish.
Posted by MrSquicky (Member # 1802) on :
quote:It is good and necessary that our Judges not be subject to popular election
Incidentally, California Supreme Court judges are elected.
Posted by Brother Carlotta (Member # 11629) on :
Javert, are you comfortable allowing the government to define words for you?
Obviously the courts need to interpret laws, and oftentimes that involves determining what an exact word means in context. But to balk on the historical and philosophical question of what marriage is, and to simply defer to the State to decide--aren't you paving the way for Orwell's 1984 regime?
Also, your answer to my first question suggests that the institution of marriage does not pre-exist the State. If you believe that, what would you call a life-long committed monogamous relationship that took place apart from civilization?
And to clarify, by your answer, were you referring to the federal and state governments of the USA, or generally all governments everywhere?
Posted by Javert (Member # 3076) on :
quote:Originally posted by Telperion the Silver: You know...
Freaking SLAVERY was the POPULAR choice back in the day (as were hundreds of other horrible things). Sometimes the popular vote SHOULD NOT be the deciding factor in civil rights.
What's the saying? You shouldn't poll the fox population about what to do with the hen house? Something like that...
Posted by Brother Carlotta (Member # 11629) on :
ricree101, does OSC still post on the fora ever, or is that era come and gone? It would be really cool to hear him weigh in on many of the topics I've seen here on this forum!
Posted by rivka (Member # 4859) on :
quote:Originally posted by MrSquicky:
quote:It is good and necessary that our Judges not be subject to popular election
Incidentally, California Supreme Court judges are elected.
Yup. Which reminds me, we have a bunch of local judges up for election next week, and I haven't had a chance to look up anything about them.
Posted by kmbboots (Member # 8576) on :
Brother Carlotta, marriage has many definitions. The legal definition is the only one with which the government - and thus this ruling - should be concerned.
Posted by Javert (Member # 3076) on :
quote:Originally posted by Brother Carlotta: Javert, are you comfortable allowing the government to define words for you?
Obviously the courts need to interpret laws, and oftentimes that involves determining what an exact word means in context. But to balk on the historical and philosophical question of what marriage is, and to simply defer to the State to decide--aren't you paving the way for Orwell's 1984 regime?
Also, your answer to my first question suggests that the institution of marriage does not pre-exist the State. If you believe that, what would you call a life-long committed monogamous relationship that took place apart from civilization?
And to clarify, by your answer, were you referring to the federal and state governments of the USA, or generally all governments everywhere?
Whether or not the concept of marriage existed before the US government has nothing to do with the government's concept of marriage.
Our government offers a type of contract referred to as 'marriage'. Those who get married are therefore given certain benefits.
Our government, and many before ours, adopted the name 'marriage' for this contract. Because our government is secular, not religious, this has in essence created a separate kind of marriage.
The marriage that the government gives out, that comes with certain benefits, is the marriage I am talking about. And that marriage should be allowed for ALL or for NONE.
And as I'm an atheist, I'm much more comfortable with the government defining certain words instead of adopting religious definitions. Again, we're a secular nation, and so whatever religious definitions marriage might have do not matter in regards to American marriage.
Posted by Achilles (Member # 7741) on :
The Google ad below is a great example of what I refferred to:
quote:John McCain supports judges who will properly interpret the Constitution and not legislate social policy from the bench
I suppose that if the judges then hand down a decision that he agrees with, that is "properly interperated", whereas if he didn't agree with it then it's "legislating social policy from the bench".
*disgusted*
Posted by kmbboots (Member # 8576) on :
quote:Originally posted by rivka:
quote:Originally posted by kmbboots: I am old-fashioned enough to prefer the non-weird pronunciation.
Or English-centric enough. It's a perfectly legitimate pronunciation, used in all French-speaking countries.
I say it the English way in most contexts; in OSC-related contexts (like here) I assume the French pronunciation applies.
Don't care. Don't like it. So there. Posted by Brother Carlotta (Member # 11629) on :
Telperion the Silver, you are absolutely right. The people often do get it wrong. And you are right to be frustrated with me, if I am claiming that democracy always causes the best decisions to be made. However, I have not said that.
Slavery was wrong. Thank God we ended that debate with a war. But it was no thanks to the courts that the right side won. I'm sure you are familiar with the Dred Scott case, in which the US Supreme Court affirmed the definition of citizen as not fully including slaves. A minority of impowered persons can be just as wrong as the unbridled majority. But who would you rather have making the mistakes: a super-powerful minority of non-elected judges, or the legislature?
In California, the CA Supreme Court intervened in the legislative process, to help pass a law that the majority of CA's citizens had expressed opposition to via referendum. If, as Javert claims, the majority of Californians are now in favor of gay marriage, they should have been allowed to overturn their referendum banning gay marriage by another referendum permitting it. The legislature should have had no problem passing the law then.
The courts have no place in the legislative process. The US Constitution assigns the legislative powers in Article 1; it lists the President's veto power along with the normal procedures of Congress. Nowhere is the Judiciary given any power in the process.
The 10th Amendment of the US Constitution states:
quote:The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Have the courts overstepped their (Federal) constitutional powers and violated the 10th Amendment?
Posted by kmbboots (Member # 8576) on :
Judges are elected here, too.
Posted by pooka (Member # 5003) on :
I thought Roe v. Wade was a product of Judicial review. :goes to look:
Posted by MrSquicky (Member # 1802) on :
quote:The courts have no place in the legislative process.
So you don't think that any judicial review, even that as defined in M v M, is okay?
quote:Have the courts overstepped their (Federal) constitutional powers and violated the 10th Amendment?
I'm not a lawyer or in law school, but even I know that the CA State Supreme Court can't violate the 10th Amendment.
Posted by Javert (Member # 3076) on :
quote:Originally posted by Brother Carlotta: If, as Javert claims, the majority of Californians are now in favor of gay marriage, they should have been allowed to overturn their referendum banning gay marriage by another referendum permitting it. The legislature should have had no problem passing the law then.
I claimed no such thing. I think you have me confused with another poster.
That being said, I don't think it matters whether the majority of Californians are for or against gay marriage. The fact is that it should be allowed.
The majority of people in the country would probably want Fred Phelps to never be allowed to open his mouth to speak again. But that doesn't matter. He has the right to free speech, and the public opinion should have no effect on it.
Posted by Dan_raven (Member # 3383) on :
Where do you get the idea that the courts are "super-powerful" or that the "helped pass a law."
California is a state based on its constitution.
A law is passed.
The judges were selected to decide if that law was in accordance with the constitution.
They decided it was not.
They did not create a law. They do not enforce a law. The just make sure that the law is, well, legal.
When the Cherokee Nation went to the Supreme Court to stop President Jackson's taking of their land and property, the Supreme Court said, "STOP. That is unconstitutional."
Andrew Jackson, and his soldiers, simply ignored them.
If these judges demand something that is truly outrageous, the Executive branch need merely ignore them.
If these judges proclaim take power from the legislative branch, the legislative branch can take away their money.
Posted by BlueWizard (Member # 9389) on :
quote:Originally posted by Brother Carlotta:
Blue Wizard, thank you for your analysis. I think you beg the question when you write:
quote:As I have said in the other thread on gay marriage, this is not about your personal beliefs. It is not about the will of the majority or the will of the legislature. It is about whether it is right or wrong for society to select an otherwise law abiding group of people, and diminish their rights simply because you don't like them.
Just as the CA Supreme Court, you assume that there is a "right to marry". I think that assertion presents two questions:
1. If there is a right to marry, where did it come from?
2. What does "marry" mean, and how do you know?
I know my answer to those questions, but I would be interested in hearing yours, Blue Wizard.
Well, there are rights and there are Rights, the two being similar but not the same. In this sense we are using the word 'rights' in a common conversational sense.
But more formally,
Right - 6. Something that is due to a person or governmental body by law, tradition, or nature: “Certain rights can never be granted to the government, but must be kept in the hands of the people”(Eleanor Roosevelt). American Heritage 3rd Ed.
Marriage is a legal contract which assigns general rights and responsibilities to two people who are co-habituating under this legal contract.
This legal co-habitation of a couple exists in such a way as to form a 'family unit'.
A similar statement was added to the discussion by Javert in response to your questions -
"The legal status or relationship that results from a contract by which two citizens promise to live together as spouses for life, or until the legal termination of the relationship.
Laws and access to law in the form of a legal contracts must be granted in a fair and unbiased manner, and in a way that does no real harm to individuals or society.
I added that last part about 'harm' because all rights have limits. Your right to free speech ends when you ponder shouting 'fire' in a crowded theater or similar.
So, again, society by means of law and legal contract grants the privileges and responsibilities of marriage to couples, but by what force of law are they able to deny these contracts and accompanying privileges to certain couples?
For couples which do not harm society, as would brother and sister marrying, how can you justify denying a select group simply because you don't like them?
So, in a sense, it is not the 'right to marry' that is in question, it is the right to fair and reasonable access to legal contracts and state recognitions along with companying privileges and responsibilities that are granted to others in similar situations.
So, my first comment is that you are trying to avoid or obfuscate the issue by dancing around the definition of 'rights'.
Next, to answer your questions -
1. If there is a right to marry, where did it come from?
The right of access to legal marriage comes from societies need to legally insure the responsibilities of couples forming families. In legally insuring those responsibilities, society, by law, also grants certain privileges.
2. What does "marry" mean, and how do you know?
It means to legally form a family unit, and to accept the legal responsibilities that come with forming such a family unit.
How do I know? Well, I'm not blind or dead; I see the world around me. I see people getting married. I see people getting divorced. I see people arguing over financial responsibility for children that are a result of that legal family unit. Though admittedly there is also a legal responsibility for children that arise outside of a legal family unit.
I see people getting and being denied access to loved ones in hospitals, and to medical decisions relating to the care of those loved ones. I see people in functional family units being denied rights afforded to those in legal family units, and frequently to the detriment of the involved loved ones.
And why? Because certain functional family units are denied access to the status of 'legal' family unit.
But what is that denial based on, other than 'we don't like you'?
Law and access to legal status must be fair, uniform, and unbiased within reason. I don't think denial of gay marriage is fair, uniform, or unbiased.
EDITED: So, rather than dance around definitions, this is a question of 'equal justice under the law' and about fair application of 'due process of a law'.
Steve/bluewizard
[ May 29, 2008, 04:07 PM: Message edited by: BlueWizard ]
Posted by rivka (Member # 4859) on :
quote:Originally posted by kmbboots: Don't care. Don't like it. So there.
The irony of that particular comment in this particular thread -- and from you in particular -- is making me !
Posted by kmbboots (Member # 8576) on :
Good! So there! Posted by Bokonon (Member # 480) on :
quote:Originally posted by Brother Carlotta: Javert, are you comfortable allowing the government to define words for you?
This is such a non-sequitor. Government doesn't define marriage, the word. They define a legal construct they call marriage. Specifically they outline procedures to enter into and exit from such a legal construct, and what sorts of government rights/responsibilities are incorporated in such a legal construct.
Of course, I doubt you'll even respond to this, like you haven't responded to others, which is rather poor form.
-Bok
Posted by Dan_raven (Member # 3383) on :
Besides Brother Carlotta,
You seem to argue that a democratically elected government is the goal. It is the judicial tyrants that are the problem. If a democratically elected government defines something wrong, we can always elect new people to define it correctly.
Posted by BlueWizard (Member # 9389) on :
quote:Originally posted by Dan_raven: Besides Brother Carlotta,
You seem to argue that a democratically elected government is the goal. It is the judicial tyrants that are the problem. If a democratically elected government defines something wrong, we can always elect new people to define it correctly.
But what if the people or the legislature 'define' something is such a way that prevents us from removing them from office. I mean really, that is what Tyrants do.
If they attempt to pass law that is counter to maintaining a free and FAIR society, we need the power of the courts to slap them down. Neither the majority nor the Legislature is always right.
Again, the courts simply said the method used was unconstitutional, and in doing so, outlined the correct method from accomplishing the same thing.
Now the question is, will the citizen in general allow other citizen to modify the Constitution in a way that makes clear discrimination legally enshrined?
Posted by Lisa (Member # 8384) on :
quote:Originally posted by Brother Carlotta: In California, the CA Supreme Court intervened in the legislative process, to help pass a law that the majority of CA's citizens had expressed opposition to via referendum.
On the contrary. They passed that referendum 8 years ago. They more recently elected legislators who passed laws legalizing same-sex marriage. Given the fact that we live in a republic with representational democracy, this means that a majority of CA's citizens more recently expressed support for it.
Posted by Brother Carlotta (Member # 11629) on :
Originally said by Bokonon:
quote: This is such a non-sequitor. Government doesn't define marriage, the word. They define a legal construct they call marriage. Specifically they outline procedures to enter into and exit from such a legal construct, and what sorts of government rights/responsibilities are incorporated in such a legal construct.
Of course, I doubt you'll even respond to this, like you haven't responded to others, which is rather poor form.
Bokonon, please don't be vague. I've taken the time to reply to a number of individual responses. But in the spirit of civil discourse, let's continue...
I'm starting with your first post on this thread. You said:
quote: A) You know that the California Supreme Court ruled based on the CA state constitution, not the US constitution?
B) What do you say about the gov. of CA vetoing several attempts of the legislature to pass a law extending marriage to same-sex couples in prior years?
BTW, does this mean that we should decry justices from overturning Roe v. Wade, since that is the current law, and to do so is unfair judicial review?
-Bok
Let me start with your last point first. You asked whether we should decry justices were they to overturn Roe v Wade. Of course, if I argue that we should not decry such justices, you will use that as proof that I'm just picking and choosing where judicial review is ok (namely, when I agree with the verdict), and where it is wrong (namely, when I disagree with the verdict).
Unfortunately, Roe v. Wade was also a case of judicial activism--it struck down existing state laws based on a capricious interpretation of the emanations and penumbras of the constitution (as that same court said in justifiying its decision in Lawrence v. Texas). So it's difficult to say whether a court should be allowed to undo its own judicial activism by more judicial activism.
Let me give you a hypothetical, though. Let's say that in 1901, Minnesota's legislature introduced a very progressive law that legalized abortion. Now, ask me if I think the MN supreme court should be able to overturn that law for its unconstitutionality. Go ahead...
No. Although in some people's minds good would be accomplished by such a decision, it is the WRONG branch of government to make that decision.
But unfortunately, I think I am dreaming of a pre Marbury v. Madison country, when we are living in a country that has already gotten in bed with Judicial review. Perhaps there is no middle ground, as your questions seems to suggest, between unlimited power of judicial review and no power of review whatsoever.
But, for further reading, let me point you to an article I read in the Yale Law Journal. It's a bit long (44 pages online; the pdf is much longer, but if you ignore the footnotes, it's the same as the online version).
This is my way of copping out of answering your remaining questions directly. If you decide to read the Yale article, I think you will find the theory behind your questions addressed.
Posted by The Genuine (Member # 11446) on :
Just to eliminate any confusion I may have caused, I am not Brother Carlotta.
Posted by Achilles (Member # 7741) on :
Neither am I.
Posted by rivka (Member # 4859) on :
I am!
Posted by The Principal (Member # 5721) on :
I knew it!
But I'm not either.
Have some candy.
Posted by The Pixiest (Member # 1863) on :
I'm not, but I'm wondering if he/she (Are you a chick or a dude?) is a plant from my side. Given the weakness of BC's arguments anyway...
Posted by Lyrhawn (Member # 7039) on :
BC -
Sorry but, what's your point?
The court ruled that the referendum was overruled by the State Constitution, which has more force of law (this has been covered several times by other posters in this thread). In other words, even if it is the will of the people, they can't violate their own Constitution. If that many of them really feel that strongly about it, they need to change their state constitution, at which point it is put above the reach of the courts, and they will have to enforce it, like many other states have done.
I really don't get the big deal. If they don't support it, get a Constitutional amendment passed. If the courts aren't allowed to partake in Jucidial Review, then what part of checks and balances are they serving? It would seem that Congress could pretty much do whatever they want so long as they can outvote a veto, even violate the Constitution. Surely you aren't arguing that, or what point is there in even having such a document?
The system we have in place really is a good one. If the legislature, or a referendum from the people that has the same power as a legislated law, is against the laws of the Constitution, the courts will strike it down, but that's not the end of the story, they can still get a Constitutional amendment passed.
Do I think judicial review as it is often practiced today is always right? No. But from the very start, two people have been able to look at the Constitution and have two differing points of view as to what it means, and that hasn't changed. But I still think that even with a system that gets it wrong from time to time, it's necessary to have that check over the Executive and Legislative branches to guarantee our freedom.
Posted by Orincoro (Member # 8854) on :
quote:Originally posted by Brother Carlotta: Originally posted by Javert:
The phrase "great news" has lost its meaning if it can be applied to the California Supreme Court's decision to overturn a law that was passed by the people of California. How is it great news that the people had their power circumvented by judges who are appointed--not elected, nor accountable in any way to the people of California?
Your introduction reveals your ignorance of the underpinnings of our entire constitutional system. The CA supreme court is in place to provide a check against the law. That means, we pass a law, and it can be challenged in court against our constitution. That judgment, based on the interpretation of our constitution, is supreme. That is why if you want to ban gay marriage in California, (an act of such gravity that it should require a constitutional amendment to pass, according to the courts) then you must ammend the constitution. The people DO have the final say. Those judges are appointed according to our laws, and those laws we can vote on.
I'm sorry for jumping in late with a response to the OP, but the deep ignorance displayed here is appalling. No matter your personal beliefs, you don't understand the law, you don't understand the constitution, and you should.
As for Judicial review, this process is also adressed by our STATE constitution. Your arguments about federal law do not apply to matters of the state.
quote: Why does it matter whether the Courts or the Congress decides, as long as they make the right decision? In a word, Democracy. We pledge allegiance to "the Republic", a representative form of Democracy. "We the People" chose that form of government, in retaliation to a tyrant monarch who demanded unquestioned allegiance. We do not pledge allegiance to "the Oligarchy" (rule by a few), and thank God that we don't!
And finally. We live in a limited constitutional republic. We do not live in a pure democracy. Your argument, ironically, works better against your point than for it. Your interpretation of the social and political history of the United States is deeply flawed. In fact, we began the adventure of nationhood because of the actions of a very select few, in a very non-democratic fashion. We have never, as a nation, maintained such an illusion that we rule ourselves democratically in all matters. If we did, then civil rights legislation, the end of slavery, the repeal of anti-miscegenation laws, would never have been passed, as they were, in all cases, enacted against the will of unified groups of Americans, and carried out consciously in the name of universal human rights.
[ May 29, 2008, 11:47 PM: Message edited by: Orincoro ]
Posted by The Genuine (Member # 11446) on :
quote:The CA supreme court is in place to provide a check against the law.
No. Some laws, like constitutional ones, just trump other ones, like statutes. But it's all the law.
Posted by Orincoro (Member # 8854) on :
Thanks for clarifying, I meant to refer to "the law" in the singular, as in, this specific law, and its precedence over other already existing laws and statutes.
Posted by Bokonon (Member # 480) on :
quote:Originally posted by Brother Carlotta: Originally said by Bokonon:
quote: This is such a non-sequitor. Government doesn't define marriage, the word. They define a legal construct they call marriage. Specifically they outline procedures to enter into and exit from such a legal construct, and what sorts of government rights/responsibilities are incorporated in such a legal construct.
Of course, I doubt you'll even respond to this, like you haven't responded to others, which is rather poor form.
Bokonon, please don't be vague. I've taken the time to reply to a number of individual responses. But in the spirit of civil discourse, let's continue...
I don't believe I was vague at all. Thank you for responding though.
quote: I'm starting with your first post on this thread. You said:
quote: A) You know that the California Supreme Court ruled based on the CA state constitution, not the US constitution?
B) What do you say about the gov. of CA vetoing several attempts of the legislature to pass a law extending marriage to same-sex couples in prior years?
BTW, does this mean that we should decry justices from overturning Roe v. Wade, since that is the current law, and to do so is unfair judicial review?
-Bok
Let me start with your last point first. You asked whether we should decry justices were they to overturn Roe v Wade. Of course, if I argue that we should not decry such justices, you will use that as proof that I'm just picking and choosing where judicial review is ok (namely, when I agree with the verdict), and where it is wrong (namely, when I disagree with the verdict).
Unfortunately, Roe v. Wade was also a case of judicial activism--it struck down existing state laws based on a capricious interpretation of the emanations and penumbras of the constitution (as that same court said in justifiying its decision in Lawrence v. Texas). So it's difficult to say whether a court should be allowed to undo its own judicial activism by more judicial activism.
Let me give you a hypothetical, though. Let's say that in 1901, Minnesota's legislature introduced a very progressive law that legalized abortion. Now, ask me if I think the MN supreme court should be able to overturn that law for its unconstitutionality. Go ahead...
No. Although in some people's minds good would be accomplished by such a decision, it is the WRONG branch of government to make that decision.
But unfortunately, I think I am dreaming of a pre Marbury v. Madison country, when we are living in a country that has already gotten in bed with Judicial review. Perhaps there is no middle ground, as your questions seems to suggest, between unlimited power of judicial review and no power of review whatsoever.
But, for further reading, let me point you to an article I read in the Yale Law Journal. It's a bit long (44 pages online; the pdf is much longer, but if you ignore the footnotes, it's the same as the online version).
This is my way of copping out of answering your remaining questions directly. If you decide to read the Yale article, I think you will find the theory behind your questions addressed.
Fair enough, I'll check it out at some point. That said, I further on withdrew my Roe v. Wade example, realizing that it didn't make the point I was trying to make.
-Bok
Posted by The Genuine (Member # 11446) on :
quote:Originally posted by Orincoro: Thanks for clarifying, I meant to refer to "the law" in the singular, as in, this specific law, and its precedence over other already existing laws and statutes.
You mean the California Supreme Court was established over a hundred years ago specifically to guard against the gay marriage law?
Posted by Brother Carlotta (Member # 11629) on :
Thank you Bokonon! Whenever there is a book exchange, there is love. Now I just need your book. :-)
Posted by scholarette (Member # 11540) on :
I would have liked the court to have mentioned the difference in ability to procreate between heterosexual couples and homosexual couples- even if it was to dismiss it. For example, just tossing in a line that due to the number of adoptions and in vitro fertilization, a gay couple can still have a child and therefore rights based on providing a stable household for potential children should apply equally to them as well. I just would like to feel like they had looked at that difference and then discounted it. Other then that, I'm fine with the decision. Though I am pretty cool with activist judges in general- things like brown v board are good for society.
Posted by TL (Member # 8124) on :
Brother Carlotta, welcome to hatrack. You're wrong!
Posted by fugu13 (Member # 2859) on :
scholarette: Their argument wasn't related to any capabilities of marriage, but about discrimination protections in the California constitution. No matter how much being able to provide a stable household for potential children might be possible for gay couples, that is not something for the courts to decide to grant the right to marry based on.
I mean, there are lots of combinations of people that would provide stable households for potential children that aren't allowed to marry, and lots of people who can't provide stable households for potential children who marry (frequently, in some cases).
It would definitely be an argument I would expect to (and know has) come up in legislative arguments on the topics of marriage and adoption, but, again, it isn't even vaguely in the realm of things a court would or should consider when deciding if same sex couples have marriage rights.
Posted by Dan_raven (Member # 3383) on :
hmm interesting argument against the "Marriage = Produce Kids" argument.
Sue and Sally are a couple. Sally gets pregnant. How? In-vitro or cabana boy after one too many Margaritas. (Sally is Bi) It does not matter to Sue, who loves Sally and will help raise the child as her own.
Joe and Lucy are a couple. Lucy gets pregnant. How? In-Vitro or cabana boy after one too many Margaritas. It does not matter to Joe, who loves Lucy and will help raise the child as her own.
Does the fact that Joe is not the biological father disqualify the marriage of him and Lucy? No.
So why should it disqualify the marriage of Sue and Sally?
And if you let two women get married, isn't it a violation of equal rights not to also let two men get married?
I mean Bill and Peter are a couple, but Peter is bi and a cabana boy. He may have children to bring home too.
Posted by Orincoro (Member # 8854) on :
quote:Originally posted by The Genuine:
quote:Originally posted by Orincoro: Thanks for clarifying, I meant to refer to "the law" in the singular, as in, this specific law, and its precedence over other already existing laws and statutes.
You mean the California Supreme Court was established over a hundred years ago specifically to guard against the gay marriage law?
Do you mean to be obtuse?
Posted by The Genuine (Member # 11446) on :
No, I don't.
quote:The CA supreme court is in place to provide a check against the law.
quote:Originally posted by Orincoro: Thanks for clarifying, I meant to refer to "the law" in the singular, as in, this specific law, and its precedence over other already existing laws and statutes.
=
The CA supreme court is in place to provide a check against this specific law, and its precedence over other already existing laws and statutes.
Posted by TL (Member # 8124) on :
Total sillines. You can't actually imagine that's what Orincoro meant, so let's not split hairs and play gotcha while there are substantive discussions to be had.
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