Tuesday, May 26, 2009

California's Constitution is Constitutional

UPDATE: below

At 1pm EDT, the California Supreme Court upheld the constitutionality of Proposition 8's ban on gay marriage. The 6-1 decision is here (the majority opinion is 136 pages!). Key quote from page 11:
[N]o authority supports the Attorney General's claim that a constitutional amendment adopted through the constitutionally prescribed procedure is invalid simply because the amendment affects a prior judicial interpretation of a right that the Constitution denominates "inalienable." The natural-law jurisprudence reflected in passages from the few early judicial opinions relied upon by the Attorney General has been discredited for many years, and, in any event, no decision suggests that when a constitution has been explicitly amended to modify a constitutional right. . . the amendment may be found unconstitutional on the ground that it conflicts with some implicit or extraconstitutional limitation that is to be framed and enforced by the judiciary.

I believe I called this right, especially based on page 3 of the majority opinion:
[O]ur task in the present proceeding is not to determine whether the provision at issue is wise of sound as a matter of policy or whether we, as individuals, believe it should be part of the California Constitution. Regardless of our views as individuals on this question of policy, we recognize as judges and as a court our responsibility to confine our consideration to a determination of the constitutional validity and legal effect of the measure in question. It bears emphasis in this regard that our role is limited to interpreting and applying the principles and rules embodied in the California Constitution, setting aside our own personal beliefs and values.
Compare this Democratic Underground thread of progressives with no notion of popular sovereignty. And see this at Ace of Spades:
[T]he reason this attitude pisses me off so much is because it undermines our system of government and our system of justice. If it is true that there's nothing we can do except bow down to our judicial overlords then we might as well shut up and die or rise up in revolution. If you believe that our laws and constitutions are meaningless then you might as well lay down and die or rise up in revolution.

I don't believe that our options are so extreme and California (yes, CALIFORNIA!) proved it in November and today. Our laws and constitutions are not meaningless. And our courts are not so broken as people claim. The justice system works and works well most of the time. Should we tweak it with appropriate legislation (and props, where possible) and by appointing hard-working minimalist judges? Hell yeah. But exclaiming every time a court decision goes the other way that "the activist black-robed tyrants are at it again" undermines the very point that laws exist for a reason.

There would have been no point to passing Prop 8 if people truly believed that laws and constitutions have no meaning.

More importantly: if it were true that they were activist black-robed tyrants when they ruled against us then it is equally true that they are activist black-robed tyrants when they rule for us. It's the same judges. Nothing has changed except now we like the ruling. So make your choice: either the courts generally work and we should stay the course or the courts are arbitrary, results-oriented tyrannies and we should burn the whole place down. But you can't do both. Make your choice.
(via LawDork)

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