Sunday, May 18, 2008

Conservatives Show Their Disdain for the Constitution

***UPDATE***The original version of this post included a quote from Patterico. Patterico left a comment to the effect that his inclusion for criticism in this post did not make sense. Looking at his quote again, I realized that his complaint was justified, and that I should not have singled his post out for criticism within the context of this post (although I obviously disagree strongly with his position nonetheless). I apologize for that, and have removed that portion of this post.

The other day, I wrote a defense of "judicial activism" in which I showed how "activism," in the sense of judges overturning laws, is in fact one of the two primary purposes of the judiciary (along with the obvious job of arbitrating criminal and civil cases). In support of my contention, I quoted extensively from Alexander Hamilton's Federalist #78 (and if you recall your history, Hamilton was far from a libertarian, at least in relation to the other Founding Fathers).

To be sure, it is the job of the judiciary to "interpret" the Constitution (or the state constitution in the case of the gay marriage decision). But the job is substantially larger when it comes to statutory or administrative law rather than Constitutional law - in that case, the job of the courts is to both "interpret" the law AND, if the interpretation runs afoul of the Constitution (or state constitution), to either overturn the law or interpret it so that it does not run afoul of the Constitution. If the courts do not have this power then, as Hamilton pointed out, the legislature, executive, and/or temporary popular majority faction are able to disregard the Constitution (or state constitution) as they please. Indeed, it's worth pointing out that consideration of the constitutionality of a statute or referendum is almost never considered by a legislature or in a public debate.

Constitutions exist to ensure that everyone plays by the same rules- rules that must be respected both by powerful majority and tiny minority factions. When one faction - usually the powerful majority - fails to play by those rules, then it is the duty (not option, not prerogative, but actual duty) of the courts to turn that majority back.

What is so disturbing about conservatives' reactions to the California decision is the way in which it shows they have so utterly abandoned their stated respect for the Constitution in the 1980s for a form of self-serving majoritarianism in which the sole power capable of overturning local legislative action is through the Presidency of the United States (Oregonians know of what I speak). In the 1980s, Justices Scalia, Rehnquist, and others became folk heroes of the conservative movement for their willingness to overturn laws whenever they (correctly, I might add) found those laws violative of the Constitution (typically in the arena of federalism jurisprudence). By almost any definition those decisions, which interpreted laws in such a way as to find a conflict with the Constitution and which significantly departed from about 50 years of SCOTUS jurisprudence, were "activist." And conservatives and libertarians alike celebrated these decisions. During the several years I considered myself a conservative, it was this view of the role of the courts to which I thought I was signing on. But that all changed, most notably with the Terry Schiavo ridiculousness, but really well before that even.

The reactions to the California court's decision demonstrate just how far the conservative view of the judiciary has strayed.

For instance:

Robert Stacy McCain:

"What Justice George overlooks is the question of who makes the laws in a democratic polity. It is not up to judges to arbitrarily re-write the laws that the people have enacted through their freely elected representatives. If the people of California wished their state laws to recognize same-sex unions, they could petition their legislature to enact such laws."

NRO's Editorial Board:

"But in a representative democracy, everyone ought to agree that any changes should result from legislation, not from activist judges who twist and distort constitutional text to their own ends."

But - giving credit where credit is due - there is also Allahpundit, giving an analysis that represents the conservative legal philosophy as I once understood it:

"All they’re doing is denying gays the label of marriage to preserve a sense of stigma, which is almost a paradigm case of what equal protection is meant to prevent. I have no problem with the ruling as long as other states aren’t compelled to recognize Cali marriages per full faith and credit, which, needless to say, is the battleground on which this decision’s going to be fought in the presidential race. Taking the federalist approach and letting each state decide for itself is an easy call for Maverick; what about the Prince of Peace?"

That all said, there is one thing I am finding quite noteworthy about this decision. That is the relative indifference that is meeting it from the conservative blogosphere on the whole. Oh, to be sure, they're still not happy about it. But they seem to have bigger fish to fry, something which suggests that gay marriage opponents are going to have a mighty hard time mobilizing voters to overturn the court's decision in November.

More at memeorandum.