The issue that conservatives have with the ruling is the recent tendency for courts to drive change into every state in the union, whether it’s wanted locally or not. The Constitution is also supposed to divide powers between the state and federal level, a division that, to the framers, had been made quite clearly in the language of the document. Unfortunately, the balance of power has tilted dramatically in favor of the federal government.
Conservatives do no disdain the Constitution as Mark suggests. But many do disapprove of actions taken in its name without justification. If the gay marriage debate were to end with the California case I suspect that most conservatives would be happy enough to let the ruling stand. But it won’t and that’s the rub.
Monday, May 19, 2008
Marc Moore at the Poligazette has a thoughtful response to my two recent posts arguing in favor of a kind of judicial activism. His response warrants a couple of clarifications on my part:
1. Not all judicial activism is "good." There are instances where the courts in fact do make new "law" without simply ruling on the constitutionality or unconstitutionality of a law or a part of the law. In such instances, the courts are actually having a coercive effect on private citizens. The example provided by Marc is directly on point here: it was one thing for the courts to overrule "separate but equal" laws, but quite another to then mandate school busing. My point about judicial activism being a nearly-exclusive good is limited to situations where the court is overturning a law/executive action or significantly limiting its application. I am extremely suspicious of instances where the court acts "passively" and chooses to uphold a law under popular pressure (think, e.g., of the New Deal cases), but I am equally suspicious of judicial "activism" wherein the court goes beyond protecting a less-powerful faction and actually makes that less-powerful faction the more powerful faction. In the case of the California decision, though, the court is simply insisting that the law be "blind" as to the two factions in issue, which is precisely the purpose of "equal protection."
2. My argument that the judiciary exists "primarily" as a means of protecting the minority against the tyranny of the majority is based on a couple of logical steps that I did not lay out in the original post. Marc would have preferred that I wrote "that the judiciary’s primary function was to defend the Constitution against increasing irrelevancy in the face of excessive expansions by the other two branches. To define and defend the fundamental laws and values of the nation, in other words." In a sense, Marc's version is accurate; however, my view- based largely on my unhealthy obsession with Federalist #10 - is that the protection of less-powerful factions from more-powerful factions is a (maybe even "the") central "fundamental value of the nation" as expressed in the Constitution. Put another way, the American experiment in self-governance is in my view fundamentally based on the desire for self-government wherein the government is hamstrung as much as possibly from acting tyrannically. Because the legislative and executive branch have the sole power to make and execute* the law as they see fit, it falls on the courts to ensure that they are not doing so in a way that can be construed as tyrannical under concepts like "equal protection,"** freedom of speech and religion, etc.
3. Marc also writes that:
My dispute with this statement is that what we are talking about here is a state court decision, not a federal court decision. I, for one, most certainly agree that the balance of power has tilted far too dramatically in favor of the federal government on most issues. But this is why I do not understand the desire of so many conservatives to seek federal intervention (in the form of a Constitutional amendment) on an issue that is being decided on a state level. It is these conservatives who, consciously or not, are showing a disdain for the very Constitutional principles they once sought to uphold.
Moreover, if you view the Constitution (and most state constitutions) as a document that seeks to protect the political rights of less-powerful factions vis-a-vis more-powerful factions (I again refer to Federalist #10 here), then the California court's action is hardly without justification. This, mind you, is not an issue of reading rights out of "penumbras" and whatnot, but instead flows directly from words such as "equal protection" and "privileges or immunities" (I am one who remains appalled that the Slaughterhouse Cases were never overturned).
Also, we cannot and should not forget the 9th Amendment (as is too often done), which makes very clear that individual rights are not limited to what is stated in the Constitution and its amendments; instead, the powers of government are supposed to be restricted to those powers specifically enumerated in the Constitution. To be sure, I doubt that there is a 9th Amendment-like clause in the California constitution; my point is simply to show the way in which the foundations of American government demonstrate a distrust of governmental power and a desire to protect less-powerful factions against more-powerful factions.
*In the post-New Deal, and especially post-Chevron era, the difference between "execution" of the law and "legislation" is extremely small, perhaps close to non-existent.
**Not an endorsement of the entire body of equal protection doctrine, much of which has become arbitrary thanks to affirmative action jurisprudence. But affirmative action jurisprudence demonstrates the importance of judicial activism- an "activist" judge would be willing to overturn affirmative action laws as unconstitutional under "equal protection" or, if they had the courage to overturn the Slaughterhouse Cases, the "privileges or immunities" clause.
Posted by Mark at 12:15 PM