Friday, December 19, 2008

Jerry Brown, judicial review and Prop. 8 problems

California's Attorney General Jerry Brown had hinted that he wanted to see Prop. 8 overturned, but today he made those sentiments crystal clear in a brief to the California Supreme Court.

“Proposition 8 must be invalidated because the amendment process cannot be used to extinguish fundamental constitutional rights without compelling justification,” Mr. Brown said in a statement.

You can read The New York Times report here - other than that newsflash, it goes through the typical opponents and supporters rhetoric that's really nothing we haven't heard before.

What this issue boils down to - aside from the marriage debate in specifics - is the general differing of opinions in contemporary America as to the function of the courts and the role of the vox populi, the voice of the people as evidenced by a vote.

Judicial review - the process by which courts can weigh in on the constitutionality of a statute such as Prop. 8 - is not explicitly in the Constitution. Rather, it came into play in America in the 1803 case of Marbury v. Madison.

I'll rein in my history geekiness and spare you the gory details, but basically, judicial review sets up an interesting power struggle between the legislative and judiciary branches. The way the Constitution is framed, the legislative branch (i.e. Congress) is supposed to make laws. The executive branch (i.e. the attorney general, who is the chief law enforcement official) enforces the laws, and the judicial branch (i.e. the courts) are to take real-life scenarios and hold them up against the laws to see if that law has, in fact, been broken.

Basically, judicial review strengthens the courts beyond their enumerated scope by creating the ability to legislate from the bench. After the Marbury case, judicial review wasn't used again until the Dred Scott case, and that case began the precedent that continued in full force through the Civil Rights movement in making rulings based on morality - not on the law.

Now before anyone gets up in arms, let me say that I agree with the outcome of the Civil Rights movement. Segregation absolutely needed to end, and racism should be done with. There's no way that voters would have changed the racism ingrained in the system with a vote.

But, that being said, the means used to reach that end set a dangerous precedent that is at the center of today's problems. There are differing schools of thought on what role the courts should play in the political process.

On the one hand, the more conservative, strict interpretation shies away from judicial review on two main grounds. First, the power of constitutional review is not specifically delegated to the Supreme Court anywhere in the Constitution. Along with this, the Tenth Amendment explicitly states that any power that is not delegated by the constitution is reserved to the states, or people. Secondly, it is the states alone that have the power to create this set of laws for the federal government follow, logically it is the states alone that have the power to interpret the meaning of these laws. Allowing the federal government to conduct judicial review allows them to interpret their own restrictions as they see fit, with no consent to the originating power.

Early American leaders had reservations about the effect judicial review would have on the voice of the people sticking in legislation. For example, in alluding to the Dred Scott case, Abraham Lincoln said:

[T]he candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes.

Likewise, Thomas Jefferson had concerns about judicial review:
You seem ... to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps.... Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.

On the other hand, you have the looser interpretation of the Constitution, which views the document more for the Founders' motives and ideals, and less for the actual system they put into place. This was certainly the M.O. of the Warren court and its Civil Rights rulings. From the perspective of Warren court member Justice William J. Brennan, Jr.,
Our amended Constitution is the lodestar for our aspirations. Like every text worth reading, it is not crystalline. The phrasing is broad and the limitations of its provisions are not clearly marked. Its majestic generalities and ennobling pronouncements are both luminous and obscure. This ambiguity of course calls forth interpretation, the interaction of reader and text. The encounter with the Constitutional text has been, in many senses, my life's work.

Brennan's perspective is the one that is seen more and more in today's courts - especially as evidenced by the California Supreme Court's overturning of Prop. 22 in May, and the now-proposed overturning of Prop. 8 by our own attorney general.

Those who favor action by the vote of the people and those preferring decisions handed down from the courts come from such vastly different paradigms that the perspectives seem nearly impossible to bring together from a basic examination of theory - let alone when you throw in an issue as emotional and controversial as same-sex marriage.

To those who oppose same-sex marriage, the vote of the people was wrongly overturned by the courts in May and absolutely should not be trampled over again. The people voted - TWICE - so let their voice stand.

Those who favor same-sex marriage, however, see the court ruling in May as a triumph for their side, and the "unenlightened" voice of the people should not be allowed to stand.

In case it's not clear, I'm more of a strict Constitutionalist from the get-go, so without bringing in the marriage question, I firmly feel that the voice of the people is sacrosanct. It's the beauty of our democratic republic that the people can weigh in and make decisions for themselves, to their blessing or curse.

Factor in the value I place on the traditional family and the importance of defending religious freedoms, and, well - I think Jerry Brown should do his job of enforcing the laws the people and legislature pass instead of giving the courts the green light to trample over the voice of the people.

But, hey, that's just me.


Chairm said...

Direct democracy, such as the ballot measures that have twice affirmed the both-sexed basis of marriage, is a legitimate process within the repubican form of government in California.

When the other branches of government have not satisified the People, this is the means by which the governed govern themselves.

The legislative branch, the judicial branch, and now the exective branch has each failed the People on marriage.

If this marriage amendment is rejected by the judiciary -- with help from the legisaltive and executive, then, Californians can kiss goodbye their right of self-government.

It is already enough that the three branches of government have acted directly against the direct vote. This was done first with the broadening of the scope of domestic partnership status. The People had just enacted a statute that affirmed marriage as both-sexed. Then the legislative branch, with the executive signature, passed legislation that merged domestic partnership with marriage. This was no compromise for it overturned the People's marriage statute.

Then the court stepped all over that statute claiming that marriage was just a word and that the merger of marriage and doemstic partnership was a fait accomplis in all but name.

The marriage amendment had not come soon enough. Remember, everyone who resides in other states where people say, we don't need amendments until the statute is trashed by the judiciary. Don't believe it. And don't believe that civil union is a bonafide compromise. It is a stepping stone to full merger and, when the opportunity arises, the pro-SSM side will pick up that stepping stone and use it bludgeon republican government and, of course, to bash the defenders of marriage for defending just a word.

If the judiciary was impartial on this sort of thing, it would stepback and recant its previous 4-3 opinion. But we can't see that for, guess what, the judiciary must preserve its power. The marriage amendment is a rebuke and yet the judiciary will rebuke the rebuke, in all likelihood.

As I said, it is is enough that the legislative and executive branches have rebuked the People. The judiciary won't turn down a second chance to do the same again.

This is the sort of sectarianism run amok that the founders had hoped to discouraged with the checks and balances. And, in California, the direct remedy is the direct vote -- perhaps the strongest check on government.

What can the People do if this check is trashed? It will be a long road back but it begins with elections and more direct votes to correct the judiciary's over-reach. The elected reps have to be retaught that they cannot kick issues down the road for the judiciary to decide. And the judiciary needs to be retaught that it is a mere branch of government, and not the ultimate power in the state.

That power is reserved for the People and if it is not exercised, with full force, the Government will operate as if it had a people (i.e. subjects), rather than as if the People (i.e. citizens) had a government (i.e. state authority delegated from the governed).

The SSM issue may be the straw that breaks the camel's back.

Anonymous said...

Chairm. your comments are like posts. i love reading them.

hey this is off topic, but i want to put your button on my blog, but it's not working. is this just me?

Christa Jeanne said...

Hey, Ruby - not sure about the blog button. I've got it on my personal blog without a problem. Hizzeather's the pro with this stuff - I'll pick her brain and let you know. Thanks for your comments, friends! :)

Zoey said...

Spot on! One of my all time favorite posts. Great job. Awesome comment by Chairm also.