Patterico's Pontifications

8/13/2010

The Negation of Your Vote By Your Betters

Filed under: Dog Trainer — Patterico @ 7:22 am

I have an upcoming essay about the way in which the value of our votes has been diminished over time. One of the reasons our votes are worth less nowadays is the negation of our votes by liberal federal judges, who issue rulings striking down our laws — sometimes after a trial where the people supposedly charged with defending the law actually disagree with the law.

I can’t let pass without comment a perfect illustration of this principle of negation of our votes, as it is so well illustrated by a pair of L.A. Times articles today.

In the first, you can listen to the palpable frustration of voters who thought their vote had actually meant something, but are now finding out otherwise:

“I thought the people voted on it,” said Russell Wade, 72, who was watching children body-boarding in the waves below Huntington Beach Pier this week. “I guess it doesn’t matter as long as certain groups don’t like what the voters decide. The people voted on it and it should be left alone. Period.”

Another voter echoed the sentiment:

“Why should I waste my time voting if the opposition can find one judge to overturn the will of the people,” said Bill Petersen, 66, of Tustin. “It doesn’t make sense.”

Meanwhile, we have another article that treats seriously the notion, which I mocked last night, that the proposition’s backers had standing for purposes of a trial, but not an appeal. What is perhaps most outrageous about this theory, is that the people pass a proposition because they don’t trust the way that state officials are handling the issue — and then it falls to state officials, who disagree with the proposition, to “defend” the proposition:

The defendants in that case were Gov. Arnold Schwarzenegger and Atty. Gen. Jerry Brown, but they declined to defend the law. As the losing parties, they have authority to appeal Walker’s ruling. But both Brown and Schwarzenegger hailed Walker’s decision and said they would not appeal.

“The governor supports the judge’s ruling,” spokesman Aaron McLear said Thursday.

A private group that opposes same-sex marriage, ProtectMarriage.com, defended Proposition 8 during the trial Walker held earlier this year. The group wants to appeal but may lack legal standing to do so.

There is more at stake here than gay marriage. If that argument prevails, it eviscerates California’s initiative process, as to any law that the Attorney General and Governor don’t like.

Free advice for Meg Whitman’s handlers: this needs to be a major issue in Jerry Brown’s campaign.

As it happens, the judge’s standing argument not only lacks common sense, it lacks legal soundness as well. Not that you would know that from reading the L.A. Times. Here is Ed Whelan:

[S]ettled principles of California law, including but not limited to the very same type of legal authority relied upon by Karcher—a State Supreme Court decision permitting intervention—establishes Proponents’ authority “as agents of the people of Arizona to defend, in lieu of public officials,” the constitutionality of Proposition 8.

(Thanks to A.W. for this link.)

In the L.A. Times article, these settled principles are only fleetingly alluded to by John Eastman before they are ridiculed by the usual suspect Erwin Chemerinsky, a partisan hack whose views on the law are purely a function of political ideology.

But pay no attention to settled principles, or to the sanctity of the vote. All of this is dispensable when it comes time to negate your vote for ideological reasons.

84 Responses to “The Negation of Your Vote By Your Betters”

  1. Just about any judicial review will be against the more majoritarian branches, whether it is an action by an elected executive, an elected congress, or an initiative. Our “betters” on the supreme court negated our elected representative’s wishes to ban animal crush videos. Good thing.

    “A private group that opposes same-sex marriage, ProtectMarriage.com, defended Proposition 8 during the trial Walker held earlier this year. The group wants to appeal but may lack legal standing to do so.”

    They seemed to do a bad job. Maybe someone else can do it?

    bart (e7cfee)

  2. Seeing the name “bart” in the recent comments seems to be a 100% accurate predictor of douchenozzlery.

    JD (da56a4)

  3. bart is, I’m guessing, blah/AF/etc.

    No time to check, but his comments are showing up in the filter. Must be using a banned IP. I deleted the last one.

    Patterico (c218bd)

  4. They seemed to do a bad job. Maybe someone else can do it?

    They seemed to do a bad job if you believe the lying judge and the lazy media. See my other post from this morning.

    Patterico (c218bd)

  5. Well, Patterico, you know i basically agree with you.

    I probably used the word “outrageous” when the ruling first came down. But if I did, I used that word lightly, ignoring its full meaning.

    Now I am starting to be really outraged. As in, filling with rage. As in angry. As in furious.

    This judge has behaved lawlessly. He should have stepped down at the beginning. Before he even started the trial his decisions about discovery and cameras were overturned in unusual and extraordinary writs. I have never personally seen a judge overturned at pretrial even once.

    The decision then purports to predict the future and ignores direct and binding precedent on the subject. I don’t mean that he considers those precedents and discounts them. He just pretends they don’t exist.

    And now he has in essence given a veto to the governor and attorney general.

    It is high time that adults in the 9th circuit put an end to this mess. They need to step in, they need to state that Judge Walker should have disqualified himself, or at least disclosed fully all factors related to disqualification. And because of that failure, the decision should be vacated in its entirety, and sent back to a different judge to decide it.

    As for the bigger point of the post about our betters deciding for us, of course there is a place for judicial review and I have zero doubt that Patterico agrees. But there is judicial review of a statute to determine its conformity with the constitution and judicial review of a statute to determine its conformity with the judge’s own policy preferences.

    Even in California, gay marriage couldn’t win the support of a majority, in a democratic “wave” election. How long do people think they can get by with virtually no support from anyone except the judiciary?

    Aaron Worthing (A.W.) (e7d72e)

  6. “They seemed to do a bad job if you believe the lying judge and the lazy media. ”

    Could be. I find some other deficiencies. They probably are related to the dearth of witnesses they presented. Maybe they weren’t expecting a trial?

    bart (7c85b9)

  7. bart

    apparently you didn’t read the next post.

    Aaron Worthing (A.W.) (e7d72e)

  8. What witnesses did they need to provide in order to prove that there is no “constitutional right to marriage”, bart?
    Perhaps they should have placed a copy of the CA state constitution on the witness stand, and then invited the prosecution to cross-examine.

    Icy Texan (eee334)

  9. eviscerating California’s initiative process is long overdue … it’s one of the biggest reasons it’s a failed state what is surpassingly doomed to mendicancy

    the Prop 8 bigots knew there would be a legal challenge and they knew what the possible consequences were – the Prop 8 bigots saw that the assembly had passed gay marriage and their bigoty ignant hearts were trembly and scared… so they chose to bet that they could amend the constitution before Schwarzenpoofter was out of office and the governorship was held by someone who wouldn’t veto the legislative legalization of gay marriage in California what Schwarzenpoofter had vetoed…. in other words they in effect chose to throw this situation to the courts because they were losing in the legislature

    now they want to whine and cry

    It’s ugly to watch a majority coalition of the ignant relegate fellow citizens to a second-class status and it’s not like anyone should be saying more please I don’t think.

    happyfeet (19c1da)

  10. happyfeet, your comments are completely incoherent. Not to mention, you can’t get the basic facts correct.

    SPQR (26be8b)

  11. is the negation of our votes by liberal federal judges,

    Anyone who voted for Obama and didn’t care or didn’t realize his impact on the judiciary throughout this nation has no ground to stand on. Of course, I’m assuming such a person is not a liberal and therefore would be unhappy about leftist judges.

    There are a variety of “centrists” or squishy Republicans — or certain others not confidently of the left — who fell for Obama 2 years ago. They really are the biggest fools on two feet.

    Mark (411533)

  12. so you admit that this subverts california constitution on the very subject of the ability to amend it. you are just okay with it.

    shouldn’t that be up to the people of california, not the federal judiciary?

    Aaron Worthing (A.W.) (e7d72e)

  13. the Prop 8 bigots

    Between that and your arguments about that woman from the NAACP, you really do lean left when it comes to socio-cultural issues.

    When I think of biggest fools on two feet and the way they mark their election ballot, I think of all the millions of people with ideological schizophrenia.

    Mark (411533)

  14. your comments are completely incoherent

    Maybe not to him, particularly if he’s bisexual (or exclusively homosexual).

    There’s no question Walker’s sexuality impacted his ruling—even more so since he apparently isn’t an avowed liberal. Homosexuality seems to be rooted in liberal (or “non-conformist and proud of it!!”) sentiment. Or do-your-own-thang, anything-goes liberalism seems to inculcate homosexuality.

    Mark (411533)

  15. happyfeet, they chose to “throw this situation” TO THE PEOPLE, after the legislature twice tried to enact legislation that was counter to the will of the people. At that time, the governator was concerned about being re-elected, hence he vetoed in the interest of the will of the people. Now, he’s a lame duck looking to be “on the right side of history”, or some equally lame legacy crap.

    Icy Texan (eee334)

  16. gay marriage is an a lot conservative thing I think cause of it strengthens families by not otherizing their gay kids and brothers and sisters and it foregrounds individual liberty by allowing individual people to marry who they choose

    happyfeet (19c1da)

  17. The last time I checked, conservatives believe in liberty WITH social responsibility.

    And a great part of that liberty is the right of the people to decide.

    Icy Texan (eee334)

  18. gay marriage = the final frontier

    daleyrocks (940075)

  19. To boldly go where no man has gone before?

    Icy Texan (eee334)

  20. “it strengthens families by not otherizing their gay kids and brothers and sisters”

    Bulldookey. Acceptance is what not otherizes them, not a legal designation mandated by the court.

    daleyrocks (940075)

  21. gay marriage is an a lot conservative thing

    That’s quite a rationalization.

    Male homosexuality (which is more common, or less uncommon, than female homosexuality) is so hyper-sexualized that anything involving “gay” automatically furthers the sexualization of society. Moreover, the history of gay people is so full of bisexuality — in which free will and free choice are surprisingly apparent — that codifying homosexuality (“same-sex marriage is honored just like traditional marriage!! xoxoxo”) will mainly encourage a “do-your-own-thang,” “if-it-feels-good-do-it!” “don’t-sweat-the-details” mindset.

    SSM will promote the sense of self-entitlement (and its closely related off-shoot of shamelessness) that’s already more pervasive today than ever before.

    That doesn’t sound like a conservative socio-cultural scene to me.

    Mark (411533)

  22. Comment by Aaron Worthing (A.W.) — 8/13/2010 @ 8:00 am

    I think we’ll all know this court case is a rigged game if Judges Pregerson, Paez, and Reinhardt are on the 3-judge panel. Especially if all three are on that panel.

    Which would then mean there’s only one argument left to stop (?) gay marriage. Anyone feel like launching the Nuclear Bomb known as Class Warfare?

    Brad S (9f6740)

  23. A large proportion of the reason that anti-Prop 8 campaign failed to convince voters was because of the instant use of the “bigot” label by them toward anyone that didn’t agree with them.

    That and their vehement rhetoric against Mormons showed who the real bigots are.

    SPQR (26be8b)

  24. One of the reasons our votes are worth less nowadays is the negation of our votes by liberal federal judges, who issue rulings striking down our laws — sometimes after a trial where the people supposedly charged with defending the law actually disagree with the law.

    It all comes back to the “Ruling Class” vs the people.

    The Founders envisaged a system in which competing centers of power held each other in check. The executive, legislature and judiciary were expected to each be on their guard against one another. And the states were expected to be a bulwark against encroaching Federal government power.

    What we have instead is a system where the executive, legislature, and judiciary at the federal and state levels are all in the hands of people who think alike.

    In theory, Walker should be tossed out of office for what he has done. As the Founders saw it, Congress would fire him for daring to encroach on their turf. They never envisaged an ideological faction spanning all the branches of the federal government plus the majority of the states.

    There is no easy way out of this. It will take a third American Revolution to take away the power the Ruling Class has appropriated to itself.

    Subotai (f73fa1)

  25. it foregrounds individual liberty by allowing individual people to marry who they choose

    If “foregrounding” individual liberty is our goal, lets just go ahead and scrap all laws. That will “foreground” individual liberty like no ones business.

    Subotai (f73fa1)

  26. Comment by Subotai — 8/13/2010 @ 9:26 am

    Please do not go into the “Ruling Class” nonsense that Angelo Codevilla is peddling. That tripe is even worse than Rush Limbaugh’s mid-90s “producers and takers” rhetoric, which was not only race-baiting in nature, but also conveniently masked Limbaugh’s own business practices. Which, if they had been fully exposed, would show that “producer” and “taker” are one-and-same.

    Brad S (9f6740)

  27. Disdain or discomfort towards homosexuality — particularly as it pertains to same-sex marriage — appears to be inherent in human nature. If one thinks the controversy over that form of sexuality today is somehow unique to our modern society, guess again…

    The ancient Greeks are widely known for their homosexual exploits. Many ordinary people are aware of Greek homosexual love poetry, the same-sex relations of Greek gods and heroes, and the homosexual relationship between Alexander the Great and Hephaestion.

    One important passage from ancient Greece that speaks against homosexuality is Plato’s Laws 636c. Here the character of the Athenian stranger rejects homosexual behavior as “unnatural” (para physin), describes it as an “enormity” or “crime” (tolmema), and attributes it to “unbridled lust.”

    Mark (411533)

  28. Comment by Mark — 8/13/2010 @ 9:36 am

    Yes, and what do those ancient Greeks and modern-time Americans have in common? They both explored (so to speak) homosexuality right around the same time both societies were wealthier and more dominant than they were at any time in their relative histories.

    Read the paragraph above for a clue as to how to stop gay marriage dead in its tracks (for the foreseeable future).

    Brad S (9f6740)

  29. Please do not go into the “Ruling Class” nonsense that Angelo Codevilla is peddling.

    Give me a reason why I shouldn’t.

    Subotai (e3f074)

  30. Jerry Brown should be out on his butt for non-feasance of office. He “didn’t feel” it was right? Who the hell asked you?

    Frank Drebbin (8096f2)

  31. Icy Texan

    > Now, he’s a lame duck looking to be “on the right side of history”, or some equally lame legacy crap.

    Well, to be fair to Ahnold, I think he has always said he supports gay marriage, just had some quibbles on how.

    But if you wanted to assign a more cynical motive, I would say maybe he wants to revive his acting career, so he has to be appropriately PC.

    > To boldly go where no man has gone before?

    I think Bill Clinton said that on his wedding night.

    Brad

    > I think we’ll all know this court case is a rigged game if

    I admit I don’t follow the 9th ciruit that closely. I work in the 4th and D.C. Circuit myself.

    > They both explored (so to speak) homosexuality right around the same time both societies were wealthier and more dominant than they were at any time in their relative histories.

    So you are saying that Obama’s bad economic policies will lead to the downfall of gay marriage? Well, then again there is also the Weimar precedent, which was pretty horrifying (meaning what happened next, not Weimar itself).

    SPQR

    > their vehement rhetoric against Mormons showed who the real bigots are.

    That commercial with the mormons going door to door, it reminded me of nazi propaganda against the jews. I have long said that Mormonism as a faith is one of the craziest around, like scientology levels of crazy. But the funny thing with them is that every mormon I have known of or met, with one glaring exception, have been really nice, really decent people. And while I maintain a health sense of criticism about the mormon doctrine and the faith, mormon people do not deserve to be demonized like that.

    As for that glaring exception alluded to above, you can probably guess who I am talking about and I will note that there are accusations that he converted for political reasons only.

    Anyway, I keep waiting for the judge to hold the bigotry demonstrated by opponents of prop 8 to be held against them.

    Sub

    > It will take a third American Revolution to take away the power the Ruling Class has appropriated to itself.

    Just out of curiosity what was the second in your mind.

    Some people say Jefferson’s election was a second American revolution. And others say it was the election of Lincoln and the civil war generally, which makes a little more sense because there was actual shooting involved.

    Happy

    > gay marriage is an a lot conservative

    Nothing is more tedious than a liberal on an issue trying to tell conservatives how they should think.

    Aaron Worthing (A.W.) (e7d72e)

  32. I’m surprised to see a lawyer write a piece that seems to question that the courts are a co-equal branch of government. When a judge makes a decision that is against majority opinion, for the purpose of upholding the Constitution — it seems inflammatory to call that a “negation.” That is how government is supposed to work.

    Without getting into the specifics of this case, sometimes the people are wrong. A recent study showed a majority of Americans couldn’t even name one Supreme Court justice — are they expected to be experts on constitutional law?

    At the time a judge overturned Virginia’s ban against interracial marriage, polls showed the country at 70 percent opposed to such unions. A referendum in VA would no doubt have come out against such unions. That does not mean the law was constitutional, which of course it was not.

    I think it’s short-sighted and even dangerous to want to question the system of checks and balances because we don’t like the ruling in one case. I also find it interesting that conservatives — supposed lovers of the constitution — are the quickest ones to do this.

    P., if you go forward with your essay, I’ll be interested to see how many of your peers agree with your premise, that a judge’s decision — which he believes upholds the Constitution — “negates” the people’s will.

    Myron (6a93dd)

  33. Just out of curiosity what was the second in your mind.

    The Civil War and the first big rewriting of the Constitution.

    Subotai (e3f074)

  34. Conservatives are the quickest to attack the independance of the judiciary? That’s pretty hilarious, Myron, when we just saw the President of the United States do what you condemn at the most recent State of the Union address.

    You don’t think about what you write, do you?

    SPQR (26be8b)

  35. Comment by Aaron Worthing (A.W.) — 8/13/2010 @ 9:54 am

    While Obama’s economic policies are certainly exacerbating tensions, I will humbly submit that it’s never a good policy to ask commoners to support a policy that devalues what keeps commoners in line (so to speak), all in order to placate misbehavior by folks WEALTHIER than them.

    Brad S (9f6740)

  36. SPQR – It does not think, period. Leftist JournoList types emote.

    JD (3dc31c)

  37. When a judge makes a decision that is against majority opinion, for the purpose of upholding the Constitution

    It’s not “for the purpose of upholding the Constitution”. You cling to the widespread leftwing fantasy that whatever judges do is by definition “upholding the Constitution”.

    (Unless they strike down limits on corporate funding of politics, in which case the are shredding the Constitution).

    The Constitution is not whatever judges say it is. Burn that knowledge into your mind in letters of fire.

    Subotai (e3f074)

  38. If Walker had bothered to offer a legal or constitutional reason for what he did, this argument wouldn’t be happening. Or at least it would be a very different argument. Instead, without showing that the majority had enacted anything unconstitutional, he simply disagreed with their reasons for writing the law. Their argument didn’t persuade him, so his one big vote outweighed their 7 million little votes.

    Gesundheit (cfa313)

  39. I think it’s short-sighted and even dangerous to want to question the system of checks and balances because we don’t like the ruling in one case.

    It’s always amusing to watch liberals warbling on about “checks and balances” when what they are actually saying is “there should be NO checks and balances on the judiciary”.

    If you actually believed in “checks and balances” you’d think it would be a good idea if judges were removed from office more frequently than once every twenty years.

    Subotai (e3f074)

  40. ________________________________________

    Well, to be fair to Ahnold, I think he has always said he supports gay marriage

    Not to mention that he’s most closely associated with Hollywood, where feel-good, do-your-own-thang behavior is excessive and notorious. Moreover, bisexuality (the “B” of “GLBT”) among actors/actresses apparently is not exactly uncommon, and such behavior is coming out of the proverbial closet more and more each day.

    The history of bisexuality in the entertainment industry — in which actors (ie, males in particular) apparently easily and happily switch between relationships with men and women — is another reason my cynicism (if not contempt) towards the “gay agenda” has been increasing exponentially.

    Mark (411533)

  41. Gesundheit – That makes you a divisive racist for agreeing with Teh One.

    JD (3dc31c)

  42. I did get to read the whole LA Times article linked by Patterico. Is is just me, or did the Times deliberately choose old people to comment in dissent of the ruling?

    Brad S (9f6740)

  43. “Without getting into the specifics of this case, sometimes the people are wrong.”

    Myron – Getting into the specifics of cases, sometimes judges are wrong. That is why we have the appeals process in this country and cases sometimes get overturned on appeal. Sometimes Americans who know a tiny bit about the law and the Constitution gather at places called blogs to discuss such matters. Ever heard of them?

    daleyrocks (940075)

  44. “It’s always amusing to watch liberals warbling on about “checks and balances” when what they are actually saying is “there should be NO checks and balances on the judiciary”.”

    Subotai – Correction. I believe the no checks and balances is only meant to apply to liberal judges or liberal judicial decisions. Just sayin’.

    daleyrocks (940075)

  45. 39. Subotai. I’m not sure what you’re going on about. I’m sure liberals aren’t the only ones who have had a say in how long judges serve. The system would seem to benefit a judge of whatever stripe.

    Myron (6a93dd)

  46. Daley: Huh? You’re confused. I am not the one questioning the process. Patterico is.

    I think the system is working and the judge’s decision was no more a “negation” of democracy than Loving or Brown v. Board.

    If the judge is deemed wrong on the Constitution, that will be decided by other judges later. But he believes he is right and would not be doing the job the framers intended if he just ruled on behalf of majority opinion in spite of his concerns that the law violates the Constitution.

    The system is intended in part to guard against tyranny of the majority. I’m glad our framers were a lot less hot-headed than a lot of current folks spouting off!

    Myron (6a93dd)

  47. I think Bill Clinton said that on his wedding night.
    Come on, now. What happened in the dorm room at Wellesley was just “experimenting”.

    Icy Texan (eee334)

  48. Myron

    > When a judge makes a decision that is against majority opinion, for the purpose of upholding the Constitution — it seems inflammatory to call that a “negation.

    Do you really believe that the 14th amendment, written by evangelical Christians, was meant to legalize gay marriage?

    Nobody of any seriousness is questioning the power of the courts to overturn statutes, even state constitutions, if they violate the constitution. But apparently there is a disturbingly large amount of support for a judge to be able to do it just because he feels like it. that is wrong.

    And not to put too fine a point on it, it is my understanding that Patterico personally supports gay marriage and hopes that it does become the law of the land. But he understands that sometimes the constitution doesn’t grant him his every policy preference.

    (correct me if I am wrong patterico)

    > are they expected to be experts on constitutional law?

    You don’t need to be an expert on the constitution to know that gay marriage ain’t in it. This isn’t a complicated technical point. All you have to know is that there was no gay rights movement to speak of until the 1960’s. Seriously do you really think that the framers of the 14th amendment intended it to require gay marriage, but it took us 142 years to figure it out?

    > Virginia’s ban against interracial marriage

    Was a racially discriminatory law. There is no question the founders specifically intended to eliminate racial discrimination in the law. So Loving v. Virginia vindicated original intent.

    Of course you might rationally say I am biased, given that I live in Virginia, and I am engaged in “loving” with my wife, who considered is a different race than me. to that I will only say that my opinion on the subject was fully formed long before I met her or even went to law school.

    And Brown was even more obviously in line with the constitution.

    > I think it’s short-sighted and even dangerous to want to question the system of checks and balances because we don’t like the ruling in one case

    Its not just because we disagree. Its because at every stage the judge has not conducted himself properly, starting with hearing the case at all—he should have disqualified himself. Two times in the pre-trial process the higher courts had to step in and correct him: on cameras in the courtroom and on expansive discovery that would have violated the proponents free speech rights.

    > . I also find it interesting that conservatives — supposed lovers of the constitution — are the quickest ones to do this.

    That is because you confuse the constitution with what judges have said about it. Indeed the supreme court has already spoken on this and said there was no right to gay marriage; so you are picking and choosing which judge to believe on what the constitution says, and not even picking the higher court in the process.

    > that a judge’s decision — which he believes upholds the Constitution

    At this point, I severely doubt the judge believes even that. I think he said, “I am old, I have lifetime tenure, so f— it, I’ll do what I want.”

    Aaron Worthing (A.W.) (e7d72e)

  49. he believes he is right and would not be doing the job the framers intended if he just ruled on behalf of majority opinion in spite of his concerns that the law violates the Constitution.

    What on earth makes you think that he “believes” any such thing? Or that he has any such “concerns”?

    The system is intended in part to guard against tyranny of the majority.

    Te Founders were remarkably reticent about expressing that particular view. Luckily for them, there are people like you around to explain what their real intent was.

    Subotai (adce06)

  50. btw, in less depressing judicial news, acorn lost its appeal on the issue of federal funding.

    http://www.ktuu.com/Global/story.asp?S=12975806

    score!

    Aaron Worthing (A.W.) (e7d72e)

  51. Nobody of any seriousness is questioning the power of the courts to overturn statutes,

    A.W.: I don’t see how you can say that, when P. writes a statement like: “One of the reasons our votes are worth less nowadays is the negation of our votes by liberal federal judges …”

    That does directly question the power of the courts to overturn statutes it deems unconstitutional. And P. is far from the only one who has leveled this argument.

    Look, maybe the anti-gay marriage side will win on the merits of the case. I’m not terribly concerned about the outcome one way or the other. My view is that the state shouldn’t even have its nose in marriage — it should be left to the church. And I don’t think the issue’s worth the energy, except for gays, who understandably want equal rights.

    But I don’t think it wise or productive to attack checks and balances over one ruling. I didn’t like or agree with the 5-4 ruling that gave Bush the presidency — which overturned the will of many, many millions of people — way more people than voted for Prop 8. But the system worked and I have to live with it.

    Myron (6a93dd)

  52. The system is intended in part to guard against tyranny of the majority.

    So, if the majority in California vote for gay marriage instead of against it, “the system” will leap into action to in order to thwart the “tyranny of the majority”. Right?

    Subotai (adce06)

  53. Of course you might rationally say I am biased, given that I live in Virginia, and I am engaged in “loving” with my wife, who considered is a different race than me

    A.W: BTW, I’m in the same situation — also engaged to a person of another race — so am probably a little biased, too. :)

    Myron (6a93dd)

  54. No, Myron, the district court is bound by precedent from higher courts. This really isn’t about the core power of the judicial system to do that. It’s about one court deciding it will do whatever it wants.

    The actual ability of courts to determine constitutionality is only being attacked by the rogue court, not AW or Patterico.

    Dustin (b54cdc)

  55. There is no question the founders specifically intended to eliminate racial discrimination in the law.

    I’ve heard some people compare the ban on same-sex marriage to anti-miscegenation, same-race-marriage-only laws of decades ago. But I don’t believe there ever was an effort to keep such laws intact. Moreover, virtually all of them had been enacted in the backrooms of various state legislatures and were never subjected — before or certainly after — to highly publicized, highly controversial propositions on the ballot. IOW, there were few to no examples of major rightist activism regarding the laws from decades ago compared with all the big-mouth pushiness from the left today over SSM.

    Mark (411533)

  56. That does directly question the power of the courts to overturn statutes it deems unconstitutional

    I directly question the power of the courts to overturn statutes they deem unconstitutional. If you want to debate that, debate it with me.

    But I don’t think it wise or productive to attack checks and balances over one ruling.

    But we’re not attacking “checks and balances”. You are the one attacking “checks and balances”. You are the one who wants the courts to be superior to the other branches. You are the one who wants to insulate the courts from “checks and balances”. You are the one who is insisting that if there is any checking and balancing to be done, the courts will be the checkers and balancers and everybody else will be the checked and balanced.

    Subotai (adce06)

  57. You always know when liberals are in trouble—they start screaming about racism and Jim Crow. Just as (the pretense of) patriotism is the last refuge of a scoundrel, racism is the last refuge of the liberal.

    Technomad (e2c0f2)

  58. Comment by Myron — 8/13/2010 @ 9:55 am
    32. I’m surprised to see a lawyer write a piece that seems to question that the courts are a co-equal branch of government.
    – We’re surprised that you’re able to dress yourself and leave the house.

    When a judge makes a decision that is against majority opinion, for the purpose of upholding the Constitution — it seems inflammatory to call that a “negation.” That is how government is supposed to work.
    – Too bad that “upholding the Constitution” has NOTHING to do with this case.

    Without getting into the specifics of this case, sometimes the people are wrong.
    – Yeah, why bother getting into the “specifics”? It’s only ideology that matters; right?

    A recent study showed a majority of Americans couldn’t even name one Supreme Court justice — are they expected to be experts on constitutional law?
    – Was that a “study”? or a Poll? And what does it matter either way? When a judge, such as the chief justice of the CA Supreme Court, asserts a constitutional “right to marry” where no such right actually exists, then it is the judge that is in the wrong . . . and he can probably name ALL of his fellow justices.

    At the time a judge overturned Virginia’s ban against interracial marriage, polls showed the country at 70 percent opposed to such unions. A referendum in VA would no doubt have come out against such unions. That does not mean the law was constitutional, which of course it was not.
    – Comparing apples & oranges again, Myopic? Hint: oranges are the ones that are of a color that rhymes with “orange”.

    I think it’s short-sighted and even dangerous to want to question the system of checks and balances because we don’t like the ruling in one case.
    – It was the judge that didn’t like the will of the people. Therefore, he questioned the motives of those that proposed Prop 8. The liberal obsession with “intent” continues.

    I also find it interesting that conservatives — supposed lovers of the constitution — are the quickest ones to do this.
    – Lovers of freedom are always the quickest ones to cry “foul” when a judge INVENTS new rights that are nowhere within the Constitution.

    P., if you go forward with your essay, I’ll be interested to see how many of your peers agree with your premise, that a judge’s decision — which he believes upholds the Constitution — “negates” the people’s will.
    – Because as long as the judge “believes” it, it’s okay? Judges ARE smarter than the rest of us, and infallible, and are never swayed by personal prejudice; right?

    Icy Texan (eee334)

  59. The system does not guard against “tyranny of the majority” against minorities. Majorities are supposed to rule over minorities – that’s what democracy is.

    The system is designed to prevent the majority from compromising specific rights of the minority. And the system was never designed to protect “minorities” from rights that they made up.

    SPQR (26be8b)

  60. Myron,

    If the 14th amendment can be used to define massive “rights” that the implementers didn’t even believe in, why was there a need for the 15th and 19th ammendments?

    Why weren’t all the anti-sodomy laws immediately nullified when the 14th amendment was ratified? Why didn’t women have the right to vote?

    Tanny O'Haley (12193c)

  61. What on earth makes you think that he “believes” any such thing? Or that he has any such “concerns”?

    Subotai: Is this a trick question? I’m going by his ruling. He obviously has concerns.

    Myron (6a93dd)

  62. He obviously has concerns.

    He certainly does!

    Whether his concerns have anything to do with law is the question.

    Subotai (adce06)

  63. More Moron:
    I don’t see how you can say that, when P. writes a statement like: “One of the reasons our votes are worth less nowadays is the negation of our votes by liberal federal judges …”
    – Because these liberal judges are negating votes based on “rights” that have been invented out of whole cloth, NOT taken from the Constitution.

    I didn’t like or agree with the 5-4 ruling that gave Bush the presidency — which overturned the will of many, many millions of people — way more people than voted for Prop 8.
    – Lying helps make your point?

    Icy Texan (eee334)

  64. “I have an upcoming essay about the way in which the value of our votes has been diminished over time. One of the reasons our votes are worth less nowadays is the negation of our votes by liberal federal judges”

    Well, we asked for it when we started letting judges exercise the unenumerated power of deciding whether or not laws are constitutional.

    They don’t have that power. We’ve never delegated that power to the United States government. That power resides in the people (in a courtroom setting the people are known as a jury), per Amendment Ten.

    As long as we let the Feds ignore the Constitution and break the law, by exercising unenumerated powers, then we’ll have to put up with this sort of nonsense where judges exercise powers they don’t lawfully have, and where they abuse those powers by ruling based on their personal likes and dislikes instead of on what the law says.

    Dave Surls (dc610e)

  65. Patterico

    And it gets even worse.

    It turns out that Imperial County tried to come in as defendants, in order to make it possible to have an appeal. and what do you know, that was denied, too. http://www.scribd.com/doc/35394776/Order-motion-to-Intervene-Imperial-County

    One of the more risable statements by the judge: hey, you don’t have a right to intervene because you are already adequately represented by the governor and A.G.

    yes, really.

    i think if i worked for hot air, i would headline it “against all odds, Walker’s Proposition 8 rulings get even worse.”

    Aaron Worthing (A.W.) (e7d72e)

  66. if votes via ballot box are rendered worthless, don’t be surprised if the People find other ways to get their point across to an oblivious government.

    redc1c4 (fb8750)

  67. Myron steps on the rake again.

    daleyrocks (940075)

  68. I found this line particularly comical:

    is the negation of our votes by liberal federal judges, who issue rulings striking down our laws — sometimes after a trial where the people supposedly charged with defending the law actually disagree with the law.

    Made me remember Bush v Gore when everyone’s votes were less important than those commie libs on the Supreme Court. Or the 30(?)states asking these “liberal” judges to overturn a duly enacted heath insurance reform bill.

    In fact, calling Walker a liberal was pretty funny, since he is a libertarian at best and appointed/nominated to the bench by two Republican Presidents. After 30 years of “conservatives” appointing judges (with one eight year respite), I’m still supposed to believe the federal judiciary is full of “liberals”!

    I guess it’s a liberal idea that one cannot be deprived of one’s civil liberties by majority vote……

    Oh, and although I’m sure the citation of California law really wowed Judge Walker, maybe he saw it as unpersuasive as California’s Supreme Court did.

    You know, for a guy allegedly opposed to Proposition 8, Judge Walker really seems to have offended you, Pat.

    timb (449046)

  69. Aaron – as a structural matter, I don’t think it’s appropriate for a county government to usurp the position of the state.

    Counties are entirely creatures of the state; it would be extremely problematic to allow any one of the state’s 53 counties to take a different position in court than the state does on any issue they desired.

    This is a ‘bad facts make bad law’ case: allowing imperial county to intervene to take a different position than the state on this issue also allows san francisco county to intervene to oppose the death penalty in any case where it chooses to.

    aphrael (e0cdc9)

  70. “That does directly question the power of the courts to overturn statutes it deems unconstitutional.”

    I don’t question whether courts have that power; I simply flatly deny that federal judges (a judge being only one element in a court, not the court itself) have any lawful power to declare a law unconstitutional.

    You can change my mind easily enough…just point to the part of the Constitution where that power is enumerated.

    Dave Surls (dc610e)

  71. Dave – if courts have the power to declare laws unconstitutional, but judges do not, then where in the court does the power reside?

    My suspicion is going to be that you think it resides in juries; but juries are not required in all cases, and are generally not even allowed in appellate cases. That position would imply that an appeals court has no power to declare laws unconstitutional – which, in effect, means that there’s no way to declare a law unconstitutional and have it be binding nationwide.

    aphrael (e0cdc9)

  72. “Made me remember Bush v Gore when everyone’s votes were less important than those commie libs on the Supreme Court.”

    timb – You mean when the dastardly U.S. Supreme Court had the nerve to point out that the Florida Supreme Court was not following Florida law? The horror!

    daleyrocks (940075)

  73. I guess it’s a liberal idea that one cannot be deprived of one’s civil liberties by majority vote……

    It’s a liberal idea that ones “civil liberties” are supposed to be defined by judges, yes.

    Subotai (6baa20)

  74. First, guys, Myron seems to be disagreeing in a respectful way. let’s play nice.

    Timmah on the other hand up to his usual dumbf–kery.

    Myron

    > “One of the reasons our votes are worth less nowadays is the negation of our votes by liberal federal judges …”

    Liberal federal judges buy into living constitutionalism, which yes, will negate our votes. It’s a perfectly valid point.

    > My view is that the state shouldn’t even have its nose in marriage — it should be left to the church.

    Well, the judge also ruled that marriage is a fundamental right. Which means that according to him, the states have to offer marriages. Still like this decision?

    > I didn’t like or agree with the 5-4 ruling that gave Bush the presidency — which overturned the will of many, many millions of people — way more people than voted for Prop 8. But the system worked and I have to live with it.

    But that is just it. Bush v. Gore shows us how important it is to have a neutral referee among the three branches of government. And yet these many years of liberal judicial activism had so eroded that principle, that people no longer believed that the Court could be that referee. Two years later the same Supreme Court declared that there was a right to gay sex. A few years after that there was Kennedy v. Louisiana. Not to gross you out, but the facts are important here. The defendant raped his own 8 year old daughter so violently he ruptured the wall between her anus and her vagina. She survived, but needless to say she was physically and emotionally traumatized and will never have children. Louisiana law said that this was a capital crime, but this scum said that it was cruel and usual to execute him. Anyone interested in following the constitution would have considered this a no-brainer. The founders would hang a man for horse theft, after all. But somehow they thought the constitution made it unconstitutional to kill this scumbag.

    Of course the next day the Supreme Court ruled in favor of the 2nd amendment in Heller v. D.C. As one friend said at the time, “so I guess Kennedy v. Louisiana is moot now, huh?” Which yes, is both a deeply wrong thing to say, and kind of funny.

    And the more serious point is this. law is important to keeping civil society working. As that guy used to say, we don’t take the law in our own hands, we take them to court. But we do so secure in the believe that the law will decide an individual case, not the prejudices of a judge. When that feeling disappears, the glue of civil society will dissolve.

    Timb

    > Made me remember Bush v Gore when everyone’s votes were less important than those commie libs on the Supreme Court.

    Actually the problem were the democrats in florida. But hey what is wrong with three democrats deciding whether a person intended to vote for their man or not?

    > by two Republican Presidents.

    To be blunt, we all know that “conservative” is defined very differently in California, or for that matter, massachuesetts.

    > I guess it’s a liberal idea that one cannot be deprived of one’s civil liberties by majority vote

    Its funny how because the constitution protects minority positions on certain issues, that liberals think that the default is that all minorities are always protected. The rule is majority rules. Those situations where they do not are the exception.

    > as unpersuasive as California’s Supreme Court did.

    Actually Cali’s Supreme Court upheld prop 8.

    > Judge Walker really seems to have offended you, Pat.

    I know this is an alien concept to you Timmah, but there is this concept called “principle.” You should look it up sometime. And as Patterico said in the main post, if this reasoning is the law of the land, its not only the gay marriage ban that is nullified. Its also the entire initiative process.

    Aaron Worthing (A.W.) (e7d72e)

  75. Forgive timmah. He’s just now catching up.

    Icy Texan (eee334)

  76. Whalen gives short shrift to the relevant facts of Karcher: the intervenors who sought (and got) standing to appeal were state legislators, who sought to appeal the case when the governor and AG wouldn’t. The legislators were permitted to intervene because it was they who enacted the legislation.

    But the proponents of Prop 8 were not state legislators, and I’m not sure that just because they got Prop 8 on the ballot means they have authority as a matter of federal law to argue on behalf of the State/people of California. Perhaps they might in California state courts, but this is the major leagues.

    Typically, aggrieved citizens who have no injury-in-fact don’t have Article III standing. Karcher creates a “legislator standing” exception (although, of course, the legislators weren’t suing as citizens anyway, but in their official capacity), but there hasn’t been to my knowledge, any federal case in which NON-public officials have been cloaked with the “official” authority to argue on behalf of the State. And Whalen doesn’t mention any.

    That said, I don’t think it matters much. Here’s my prediction of what is going to happen:

    The Ninth Circuit will grant provisional standing to sue, and will affirm — rule against the Prop 8 proponents — on the standing issue. This will be appealed to the U.S. Supreme Court (who will also take the case on the assumption that Prop 8 proponents have standing) and the Ninth Circuit will be overturned. It will be then sent back down to the Ninth Circuit with instructions to rule on Prop 8 based on constitutional issue (14th Amendment, etc.), rather than the on standing of the litigants.

    The Ninth Circuit will affirm, and then, in “Perry II”, it will be back at the Supreme Court again.

    And then, I don’t know what. I’ll be collecting Social Security by then.

    Point is, this case is going to be around for a while.

    Kman (d25c82)

  77. “In denying the right (the courts) usurp of exclusively explaining the constitution, I go further than you do, if I understand rightly your quotation from the Federalist, of an opinion that “the judiciary is the last resort in relation to the other departments of the government, but not in relation to the rights of the parties to the compact under which the judiciary is derived.” If this opinion be sound, then indeed is our constitution a complete felo de se. For intending to establish three departments, co-ordinate and independent, that they might check and balance one another, it has given, according to this opinion, to one of them alone, the right to prescribe rules for the government of the others, and to that one too, which is unelected by, and independent of the nation.

    For experience has already shown that the impeachment it has provided is not even a scarecrow; that such opinions as the one you combat, sent cautiously out, as you observe also, by detachment, not belonging to the case often, but sought for out of it, as if to rally the public opinion beforehand to their views, and to indicate the line they are to walk in, have been so quietly passed over as never to have excited animadversion, even in a speech of any one of the body entrusted with impeachment.

    The constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist, and shape into any form they please. It should be remembered, as an axiom of eternal truth in politics, that whatever power in any government is independent, is absolute also; in theory only, at first, while the spirit of the people is up, but in practice, as fast as that relaxes. Independence can be trusted nowhere but with the people in mass. They are inherently independent of all but moral law. My construction of the constitution is very different from that you quote. It is that each department is truly independent of the others, and has an equal right to decide for itself what is the meaning of the constitution in the cases submitted to its action; and especially, where it is to act ultimately and without appeal.”

    Thomas Jefferson, 1819.

    Subotai (6baa20)

  78. btw, Ed Whelan is on a roll over at Bench memos. his latest is a pretty nicely harsh summary of all the shenanigans going on in this case.

    http://www.nationalreview.com/bench-memos/243693/most-egregious-performance-ever-federal-district-judge-ed-whelan

    money quote:

    > Walker’s course of conduct would be sufficient cause for national scandal in any case. That it comes in a case that aims to radically remake the central social institution of American society makes it utterly intolerable.

    > I can’t imagine that any federal district judge has ever committed more egregious and momentous acts of malfeasance in a case.

    He also seems to agree with me that the judge should recused himself, or at least made a disclosure about his relationships. i will point out i called that issue out last february at my blog.

    Apparently my reader didn’t get the word out. ;-)

    Aaron Worthing (A.W.) (e7d72e)

  79. > by two Republican Presidents.

    I’ve noted previously that some of the biggest blunders of White Houses occupied by Republican presidents over the past 80 years can be traced to when liberal sentiment was allowed to get the better of them. So Reagan went against his publicly stated policy and secretly negotiated with hostage-taking Iran, Bush Sr went against “read my lips, no new taxes” and admired and chose Judge David Souter, Bush Jr was spineless about bloated budgets and illegal immigration, Nixon was into a whole host of left-leaning policies, Hoover introduced the tax-and-spend approach that would be ratcheted up by his liberal successor, Roosevelt.

    Liberal sentiment and common sense are frequently mutually exclusive.

    Mark (411533)

  80. I think Whalen strains credulity, and his own credibility, when he writes that Judge Walker was “bound” by “Supreme Court” precedent, when the Supreme Court case he refers is… a 1971 Minnesota Supreme Court case.

    Kman (d25c82)

  81. “My suspicion is going to be that you think it resides in juries”

    I’d say you’re right, since that’s what I just said in post #64.

    “but juries are not required in all cases, and are generally not even allowed in appellate cases.”

    That’s the whole point…they should be required. No court should EVER be constituted without a jury. Long experience shows that they are essential to prevent governmental abuse of judicial power. That’s why we have juries in the first pace, because government judges can’t be trusted.

    Federal judges (the United States government) have no lawful authority to declare a law unconstitutional. There is no such enumerated power. Only a jury (the people) have the legitimate power to do that.

    Only they can’t very well do that if we keep allowing the government to constitute courts without juries.

    We’re in the ridiculous situation of having a court system where judges who have no constitutional authority to do so are telling us that laws we pass are…unconstitutional!

    You couldn’t make this crap up.

    Dave Surls (dc610e)

  82. btw, i have put on filters for kman, because he is my stalker. but here’s a good blanket statement. he is a constant liar and dissembler. don’t trust anything he says, period. not even if he gives you a citation, because you can mislead with a citation, too.

    he’s one of those people where you know how you can tell he is lying? if his lips are moving.

    Aaron Worthing (A.W.) (e7d72e)

  83. Kman wrong on Baker case from Minn.

    The decision of the Minn SC was appealed to SCOTUS under mandatory appellate review — net cert. The plaintiffs alleged DP and EP violations under 14th amendment.

    The SCOTUS dismissed due to lack of substantial federal question, which is — according to later SCOTUS case law — a decision on the merits which is binding on ALL lower courts.

    Walker didn’t address this case at all and it may fatally undermine his ultimate conclusion.

    Shipwreckedcrew (c16274)

  84. The ruling in California proposes a new constitutional paradigm, that one which holds that a definition per se could be a violation of equal protection, on the basis that it denies social meaning and cultural meaning.

    So what reason is there, under the reasoning outlined in the Perry ruling, to deny marriage licenses to plural marriages, even if they are just feel-good licenses with the same legal force as adoption certificates that came with Cabbage Patch Kid dolls? After all, they are being denied social meaning and cultural meaning.

    Michael Ejercito (249c90)


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