Today’s example of the arrogance of government comes to us from - where else? - California. Attorney General and longtime moonbat Jerry Brown said he will challenge the results of the recent ballot proposition which effectively eliminated gay marriage in California.
As you recall, that state’s Supreme Court recently found a right to gay marriage in the state constitution, and invalidated laws which forbade it. So, the citizens do what citizens are enttitled to do - change the constitution to incorporate those principles they find essential. If the constitution says marriage is only available between a man and a woman, then the courts cannot ignore it, right?
Not so fast, Bub. Political correctness and the hubris of elected officials like Brown are threatening to take the last vestige of the people’s power - the ballot box - away. Brown argues that an insignificant little vote of the citizenry should not overcome the judgment of the elected officials and, by God, the California Supreme Court.
”Proposition 8 must be invalidated because the amendment process cannot be used to extinguish fundamental constitutional rights without compelling justification,” Brown’s brief says.
But the money quotes of the story are both surreal and chilling:
Every branch of government–including the governor, a majority of state legislators, and the state’s highest court–approves the rights of same-sex couples to marry, while a slim majority of voters have eliminated those rights. “We have a conflict between the amendment power (through voter initiatives) and the duty of the Supreme Court to protect minorities and safeguard liberty,” Brown said.
In other words, Brown says, when the politicians and judges think one thing and the people another, the people be damned. With thinking like that, it is a small step to envisioning a court determining that the loser in an election must instead be declared the winner, as his views are more likely to “protect minorities and safeguard liberty” (and, anyway, what do the stupid voters know?).
Many of the founding fathers themselves warned us to beware of our own government, and their judgment has once again proven prescient. No less authority than the Attorney General of California is now prepared, in concert with the state’s highest court, to strip the people of their right to amend their own constitution, on grounds no more compelling than that the results are not what the politicans and judges want. The constitution would then no longer belong to the people, but solely to the occupants of political office - an effective oligarchy in the U.S.
If Brown’s efforts succeed, then California’s government ceases to be one of laws, and becomes one of men - or, more specifically, one of the policy preferences of certain men. And, in such a case, the people are reduced to relying on the mercy of a handful of politicians and judges - giving rise to the pervese irony that they are powerless to effect change without the permission of the very ones who rendered them powerless.
With even the ballot box taken from us, what voice have we left? None, as we have become subjects, not citizens.
Yes, folks, it is good to be reminded we must beware of our own government - especially when, as here, it fights to defeat, not champion, the will of the people.
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30 Responses to “California tilts toward oligarchy; will the ballot box survive?”Search
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A government of the minority of the people, by the minority of the people, for the minority of the people. The Constitution should be listed under FICTION in the Library of Congress.
“We have a conflict between the amendment power (through voter initiatives) and the duty of the Supreme Court to protect minorities and safeguard liberty,” Brown said.”
WHAT????
Maybe if they would quit wasting their time and money on fighting things like this, the state government wouldn’t be on the verge of bankruptcy. The title of “Land of Fruits and Nuts” is so befitting of them. Actually the state’s main problem is illegal aliens which is another liberal social issue.
BINGO!!!
Judicial Review will kill us all.
I maintain that no court in the world has any power or authority to overturn a constitutional amendment in any state. Allow this to happen and the setting is for usless executive and legislative branches of government (well, much more so than they are now against the judiciary).
Gov. S. (for “schmuck”, sorry if that’s mean-spirited) can end this with a simple executive order directing all government departments to sustain and uphold the will and voice of the people. Articles of impeachment should be filed against the judiciary against any judge that rules to overturn the Prop. 8 amendment. This, of course, won’t happen. Republicans are wimps and Democrats like this BS. More and more third party seems mighty appealing.
Brown orginally said he’d defend Prop 8 but he’s quite different now.
Ya’ think there’s a connection?
Will someone please write the Go To Hell California Act?
Whatever happened to the people voting for something, then it becoming law, and then all branches of the government acting to uphold that law?
Reminds me of the spending limits we placed on Mayor White that he has yet to abide by.
Can we make California secede?
The last thing Jerry Brown did that showed common sense was when he married Linda Ronstadt (back when she was smokin’ hot).
The most striking thing about this is Brown is the chief elected legal official for the State of California, in effect, the people’s attorney. It is his sworn duty to uphold and defend the people’s position in cases before the courts. He doesn’t get to cherry pick the laws he agrees with and doesn’t find agreeable. It is his job to defend the laws passed by the citizens of the California. His personal opinions are irrelevant.
Brown’s actions today represent a complete breach of his legal and professional obligations and I wish he would be disbarred for it. I hope someone brings impeachment actions against him. Like Rick said, it is a large step towards becoming a nation of men rather than a nation of laws. It is a lurch towards statist dictatorial governance and the arrogance of it is breath-taking.
Absolutely correct texpat. He should be fired, impeached, jailed, whatever.
Unforetunately that won’t happen. Dems. cheerlead him and the Repubs. are too wussy to step up. If Governor S. does his job, he’ll gain a significant sway for reelection in two years.
I’d like to get a libertarian perspective on this as well.
“We hold these truths to be self-evident, that all men are created equal…
Over the years since that famous statement was first penned, the meanings of both “men” and “equal” have changed quite a bit.
That is my libertarian perspective, but I speak only for myself.
bob;
Should a court overturn a constitutional amendment?
The Declaration of Independence is the spirit of the Constitution but not body of the Constitution. The body scripts the laws of the land. Even if you think it violates the spirit ofther Constitution, what constitutional authority gives the courts power to overturn an amendment?
If anyone is interested in this case and would like to delve into the legal and judicial questions, I offer these links:
Stephen Bainbridge has written on the original suit filed in November here.
Eugene Volokh wrote here on the same filing.
Dale Carpenter wrote here on the suit and legal and state constitutional questions in the case.
#10 Darren10, I’m confident that all of the legal and judicial dots and tittles will be thoroughly discussed on sites such as those that Texpat offers.
I question the authority of government at any level to assume the power it currently wields in regulating the most private of free associations that can exist in a society comprised of equal citizens.
bob;
Thanks for answering nothing. Good job.
California = morally and financially bankrupt.
Perhaps a few well placed charges along the San Andreas Fault would rectify the situation.
From texpat’s Dale Carpenter link:
I love these typers of thought-provoking hypotheticals.
As to the Mormons:
The great compromise in getting the Constitution accepted by smaller states was to include a Bill of Rights. Included in those rights woud be the free excercise of religion and free speech. So to isolate Mormons or any other religious group as a collective woud inhenretly violate freedoms guaranteed n the Bill of Rights.
As for Blacks:
It is inherently wrong to pass laws based on race. Laws are to apply to all people equally.
Interestingly enough both Blacks and Mormons were solated in regards to marriage aws. Since Black slaves were considered legal property, their families could legally be ripped apart. Since polygamy became a hot-button issue, laws like the Edmunds Act were passed with the purpose of breaking up polygamist marriages. Slavery was eventually ended, and rightfully so. The Mormon church had to eventually decide between what they thought was a divine practice and the law of the land. They eventually chose the latter.
For the sake of the gay marriage argument, I’d like to focus on the Mormon polygamy. What it boiled down to is that the voice of the people chose against it. The Mormon church then had to not only choose to abolish the practice but to nullify all the polygamist marriages it had already performed. Those performed after the Edmunds Act was in direct defiance of law (howbeit perceived unconstitutional). That is strikingly similar to this case RickG pointed to above. The voice of the people chose against gay marriage and now there stands the nullification of marriages already performed (in defiance of law).
There’s more to go into and I may according to discussion. But right now this Mormon daddy has to take the kids out to play. That’s based on a promise already overdue due to a crazy schedule we had today.
That was cool texpat.
My comment #7 cont’d
If Rick Warren were California Attorney General and the vote on the amendment had gone 52-48 the other way, Warren would be no less obligated to defend that result than Brown is now. If he refused, Warren would be the object of my wrath also. I may not agree with the result, but I am more interested in defending our democratic principles than the intergrity of heterosexual marriage. It is not to say that it is unimportant, but one trumps the other, period.
The three branches of government are suppose to serve as checks and balances against abuse by one or another of the branches. Legislating from the bench has become a popular sport the past couple of decades. It obviously is happening at state levels as well as federal.
I felt the ballot box had been stripped from those of us who never had a chance to cast our ballot for a legitimate candidate for president. After all the MSM had managed to elect McCain the GOP candidate long before many states held their primary.
Brown is a Bas@#d. Literally; for scheming up this logic.
The people are the ones endowed with Unalienable rights to in this case change the Constitution. This same ‘logic’ was on display when Roberts and Alito were being grilled by the, similarly ‘illegiimate’ Senate Committee. They were trying to say that The Constitution is ….what the Supreme Court says it is. As opposed to the document itself; which must have been waiting around, for the SC to decide all and sundry.
Worse still, the rulings of previous judges were on equal footing with the Document . too.
How about lets take these userpers and put them on trial for breaking their oaths to ’said’ Constitution.
12: Bob -
Actually, um.. no. What you, and others want is for the government to decree that all different living arrangements are equal. For more than 5000 years every single major society has recognized that a marriage is the union of a man and a woman. You, and others who agree with you want to completely re-define the word to mean effectively - “some folks who want to hang out together for a while”
texpat;
You’re dead on right.
#19;
Hey now, some of those societies changed and…oh, they’re not here anymore.
My bad.
Please, continue.
The comments here are precisely on point.
When I was in law school in the 1980s, it was beyond doubt that a Constitutional amendment trumped the personal preferences of the legislatures and any particular court. In fact, the view was that if a court pronounced a ruling as “constitutional,” the only sure way to reverse it was to pass a constitutional amendment which invalidated the ruling - thus preventing the courts from finding to the contrary since the Constitution unquestionably reigned supreme as the final word on the subject.
I was lucky enough to study Constitutional law under the late William Shaw, a product of the prestigious University of Chicago School of Law. Professor Shaw, may he rest in peace, would be astonished to hear that AG Brown is asking the Supreme Court of Califo;rnia to erase a constitutional provision, not on technical grounds that it was improperly passed or whatnot, but on grounds that it violates some indefinite concept of fundamental rights as fashioned by a temporary and politically-influenced collection of judges. Professor Shaw would consider it Jerry Brown’s “tough luck” that the people decided to amend the constitution in a way Brown did not like. After all, Professor Shaw would have said, the Constituion is the law of the land, not the view of Jerry Brown or some justices on the California Supreme Court.
As Texpat has noted, it is supposed to be Brown’s job to defend the duly enacted laws of the State of California, not to seek to undermine them. Using Jerry Brown’s logic, if the Congress and the requisite number of states were to pass a constitutional amendment banning abortion, the US Supreme Court could simply brush the will of the people aside by noting that abortion was a fundamental right and the people had no power to quarrel with the Supreme Court. This, as far as I know, is unheard of in American jurisprudence and would not be the result in a case before SCOTUS. But declaring the judgment of the people unworthy of consideration seems to be very well possible in the chambers of the California Supreme Court. And, considering they would make it a STATE constitutional issue, there would be no grounds for the US Supreme Court to intervene, concepts of federalism and comity being what they are.
God save us all. Be thankful you live in Texas. At least, be thankful for now.
RickG;
Really? When I was in high school in the 80s I was taught that when a court ruled that a law was “unconstitutional“, the only sure way to reverse it was to pass a consitutional amendment…
Rick, I do it all the time. You did a fabulous post. You hit on a subject I’m passionate about: judicial tyranny particularly from judicial review. The Constitution, from the way I see it already gives judicial review to the people. By the judiciary ruilng they have it, it’s lead to this logical end that we’re seeing manifest right now.
Now get to bed. It’s late!!!
PS; I rcently read the first page of the California Constitution which Brow cites as the source f the “fundmental” right to marry, even to gays, and, to the utter surprise of no one here, I found NO SUCH RIGHT DECLARED.
Amazing, ain’t it. Like judcial review, politicking’s gonna kill us all as well.
Darren10 said:
It would appear you think the Constitution should overrule the people’s vote for some minorities but not others. Is your issue really with the legality of this process or is it more to do with your own personal stand on same-sex marriage?
valit74;
No group should ever be isolated for “special laws”. It should apply to all equally. I am personally against gay marriage yes. All laws that I know of apply equally to gays. There’s no gay jails, schools, drinking fountains; but there are gay pride parades whic they can gat naked ans sexual in publc, which I can’t, so there are sme, um “special prvileges” for gay activists. But let’s get back on target. Any gay male can marry and gay female. Any gay male can marry any heterosexua female. Same goes for gay females to males. What is prohibited here is choice. Just like the Mormon church had to once choose between their choice of life and the law of the land, so do gay activists. The Mormon church established by example what gya activists should choose to do today. That is to obey the law. By doing that the Mormon church had to nullify plural marriages already performed. Banning polygamy and nullifying previous marriaes resulted in the single bggest split in the church. Numerically it was still mall but significant. Thus we see many “Mormon sects” based on polygamy today. YFZ compound being in the recent forefront.
What Brown is doing is utterly dangerous. I recently posted on Lone Star Times how what gay activists are doing is in part dangerous to the rule of law. That if the California Taco Supreme Court overules Prop 8 that sets presedent to effectively nullity the executive, legislative, and the voice of the people. The courts will rule on high. Of course, this is impossible to happen unless the other two branches and the people let it happen.
Happy Holidays to you.
Prop 8 added the following amendment to the California Constitution:
I don’t see anything in there about lesbians, gays, bisexuals, transgenders, sexually ambiguous, asexuals, or heterosexuals.
hamous;
BINGO!!!
And that has got to be one of the simpest and plain-spoken amendments ever. There’s no wille room. I guess others can go the “what is a male” route, which wouldn’t surprise me, but as is, its a pretty clear amendment and focuses on no group whatsoever.
LOL, “sexually ambiguous”, that’s funny.
The American system of government has 3 boxes. The soap box, the ballot box and the cartridge box. Vigorous use of the first two keeps the third in reserve.
Darren 10:
Who said anything about special privileges? By your line of reasoning there are no special privileges being requested. You’ll have just as much right to marry another man as any gay activist. Where do you see a “special privilege”?
There aren’t just gay parades. There are also Irish parades, Christmas parades, religious parades… Are those also to be banned?
Happy holidays to you too.
Darren10 says:
In California, the executive (the Governor) and the legislative are all against proposition 8. The legislative had passed laws to legalise same-sex marriage that were vetoed by the Governor pending the Court’s ruling which also turned out to be in favour of same-sex marriage. Since then the executive has expressed its support for the Supreme Court’s decision and its desire that prop 8 be overturned.
Only a slight majority of the people have voted for prop 8 and the issue is whether that margin is sufficient to strip people of their rights.
I understand your views are on one side of the argument and mine on the other, however you can’t just disregard the facts of this debate when arguing your case.