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.
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?
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.
posted
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?
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posted
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.
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posted
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.
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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?
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posted
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.
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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.
posted
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.
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posted
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.
posted
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.
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posted
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.
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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.
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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.
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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.
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posted
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.
posted
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.
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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. Posts: 3950 | Registered: Mar 2006
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posted
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.
posted
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. Posts: 14 | Registered: May 2008
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posted
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. :-)
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posted
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?
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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.
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As a side note, it's kind of strange now to read a topic from back when OSC used to post here somewhat regularly.
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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?
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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.
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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.
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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.
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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. Posts: 4953 | Registered: Jan 2004
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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.
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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?
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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...
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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!
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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.
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posted
Brother Carlotta, marriage has many definitions. The legal definition is the only one with which the government - and thus this ruling - should be concerned.
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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.
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posted
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".
posted
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?
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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.
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