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The Damage Done By Courts

Thursday, May 15, 2008  |  posted by Hugh Hewitt
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Today’s decision by the California Supreme Court is yet another judicial putsch. It is appalling. Incredibly, a feverish will to power on the part of small numbers of judges is rapidly eroding a citizen’s standing as the ultimate lawgiver. Courts unbound by any sense of limits, by any sense of restraint, threaten the basic understanding that has long undergirded the Republic –that the laws proceed from the open consent of the people, and that the ultimate laws, the federal and state constitutions, are documents of fixed meaning and structure, not merely window dressing on the rule of judicial elites or empty phrases waiting for elites to fill them with meaning.

Today’s ruling framed the question before the California Supreme Court this way:

The question we must address is whether, under these circumstances, the failure to designate the official relationship of same-sex couples as marriage violates the California Constitution.

That was not in fact the central question. The central question was whether the representative nature of the California state government, including its initiative provisions, would be upheld.

They were not. The California Supreme Court asserted its ultimate power today in a way that is shameful and deeply destructive of the ability of a free people to govern themselves.

UPDATE: From Justice Baxter’ opinion partially concurring and partially dissenting:

Only one other American state recognizes the right the majority announces today. So far, Congress, and virtually every court to consider the issue, has rejected it. Nothing in our Constitution, express or implicit, compels the majority’s startling conclusion that the age-old understanding of marriage -an understanding recently confirmed by an initiative law -is no longer valid. California statutes already recognize same-sex unions and grant them all the substantive legal rights this state can bestow. If there is to be a further sea change in the social and legal understanding of marriage itself, that evolution should occur by similar democratic means. The majority forecloses this ordinary democratic process, and, in doing so, oversteps its authority….

But a bare majority of this court, not satisfied with the pace of democratic change, now abruptly forestalls that process and substitutes, by judicial fiat, its own social policy views for those expressed by the People themselves.Undeterred by the strong weight of state and federal law and authority, the majority invents a new constitutional right, immune from the ordinary process of legislative consideration. The majority finds that our Constitution suddenly demands no less than a permanent redefinition of marriage, regardless of the popular will….

I cannot join this exercise in legal jujitsu, by which the Legislature’s own weight is used against it to create a constitutional right from whole cloth, defeat the People’s will, and invalidate a statute otherwise immune from legislative interference. Though the majority insists otherwise, its pronouncement seriously oversteps the judicial power. The majority purports to apply certain fundamentalprovisions of the state Constitution, but it runs afoul of another just as fundamental-article III, section 3, the separation of powers clause. This clause declares that “[t]he powers of state government are legislative, executive, and judicial,” and that”[p]ersons charged with the exercise of one power may not exercise either of the others” except as the Constitution itself specifically provides. (Italics added.)

History confirms the importance of the judiciary’s constitutional role as a check against majoritarian abuse. Still, courts must use caution when exercising the potentially transformative authority to articulate constitutional rights. Otherwise, judges with limited accountability risk infringing upon our society’s most basic shared premise -the People’s general right, directly or through their chosen legislators, to decide fundamental issues of public policy for themselves.

Judicial restraint is particularly appropriate where, as here, the claimed constitutional entitlement is of recent conception and challenges the most fundamental assumption about a basic social institution.

The majority has violated these principles. It simply does not have the right to erase, then recast, the age-old definition of marriage, as virtually all societies have understood it, in order to satisfy its own contemporary notions of equality and justice.

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