Thursday, August 12, 2010

Judges should not legislate - follow-up #1


My Main Point is there is a HUGE difference between overturning a State Law and overturning a State Constitutional Amendment. The California state courts 'found' a right to gay marriage in the state constitution - the people decided to add-to the constitution, which is their right. Doesn't make the decision Right or Wrong, but those *are* the rules.

Remember, too, that the U.S. Constitution is primarily a negative instrument - it defines what the government may NOT do. One of the key points is the founding principle that the federal government may NOT do is impose its will upon the states (or its citizens), *EXCEPT* where that authority is expressly granted to Congress. To my knowledge, I can't see where authority on defining or regulating marriage is granted to Congress. Sorry. Besides, that the responsibility in those cases is granted to CONGRESS, *not* the Judiciary. My whole complaint is that this is a legislative issue, not a legal one. I'm *not* saying that the situation doesn't need to be addressed - I'm saying it's not a Federal Judge's job to do it without clear Constitutional guidance.

And, NO, I don't see the 14th's "equal protection" clause as a valid argument. There are numerous situations where laws (state and federal) specifically prohibit allowing certain things under the law: holding elected office, getting a license, etc.; I pointed out several situations in my post. And unless specifically granted to Congress, authority for those controls pass down to the states. And when who has the control is not "clear", it passes to the states by default. And the citizenry, has ultimate control over that entire process through the ballot box (including an Initiative process, as in California).

The federal judge's ruling in this case to overturn a State Constitutional Amendment has a far greater scope than appears on the surface. It's arguable, under that ruling, that *any* state cannot regulate, certify, allow/disallow, "marriage" in *ANY* way: the ages, number of participants, participants gender, the species that are involved... ANYTHING and EVERYTHING goes! This is clearly one of those 'unintended consequences' situations waiting to explode - and, No, I'm not over-stating the situation: think about where this *could* go.

The history of Prohibition provides an example of how to (properly) overturn an Amendment you don't want - this time, it's happening by judicial fiat, and it's Wrong. Please don't misunderstand me: there *is* a legislative path (related to the 13th and 14th) which would have justified this ruling, but that hasn't happened.

IMHO, the federal judge should have set aside (or even dismissed) the case under the idea that over-turning a legally implemented state Constitutional Amendment is outside *his* jurisdiction. In other words - kick it upstairs (where its going to end up anyway). Trying to guarantee the decision *he* wanted, in spite of opposition of the citizens of the state, is the source of the judge's error. Clearly, he was more concerned with achieving a particular outcome than he was in doing his job - ruling in accordance with the law.

If management of an issue is not specifically (and clearly) granted to Congress via the Constitution itself, then control passes to the states. Period. That doesn't guarantee the state legislators (or their citizens) will exercise that power correctly or like everyone desires... but those are the rules. Please re-read my post with this perspective in mind.

And re-consider the phrase: "Consent of the governed".

- Steve

No comments:

Post a Comment