 |
|
The Kosher Gourmet by Megan Gordon With its colorful cache of purples and oranges and reds, COLLARD GREEN SLAW is a marvelous mood booster --- not to mention just downright delish
April 18, 2014
Rabbi Yonason Goldson: Clarifying one of the greatest philosophical conundrums in theology
John Ericson: Trying hard to be 'positive' but never succeeding? Blame Your Brain
The Kosher Gourmet by Julie Rothman Almondy, flourless torta del re (Italian king's cake), has royal roots, is simple to make, . . . but devour it because it's simply delicious
April 14, 2014
Rabbi Dr Naftali Brawer: Passover frees us from the tyranny of time
Eric Schulzke: First degree: How America really recovered from a murder epidemic
Georgia Lee: When love is not enough: Teaching your kids about the realities of adult relationships
Gordon Pape: How you can tell if your financial adviser is setting you up for potential ruin
Dana Dovey: Up to 500,000 people die each year from hepatitis C-related liver disease. New Treatment Has Over 90% Success Rate
Justin Caba: Eating Watermelon Can Help Control High Blood Pressure
April 11, 2014
Rabbi Hillel Goldberg: Silence is much more than golden
Susan Swann: How to value a child for who he is, not just what he does
Susan Scutti: A Simple Blood Test Might Soon Diagnose Cancer
Chris Weller: Have A Slow Metabolism? Let Science Speed It Up For You
April 9, 2014
Jonathan Tobin: Why Did Kerry Lie About Israeli Blame?
Samuel G. Freedman: A resolution 70 years later for a father's unsettling legacy of ashes from Dachau
Jessica Ivins: A resolution 70 years later for a father's unsettling legacy of ashes from Dachau
Matthew Mientka: How Beans, Peas, And Chickpeas Cleanse Bad Cholesterol and Lowers Risk of Heart Disease
April 8, 2014
Dana Dovey: Coffee Drinkers Rejoice! Your Cup Of Joe Can Prevent Death From Liver Disease
Chris Weller: Electric 'Thinking Cap' Puts Your Brain Power Into High Gear
April 4, 2014
Amy Peterson: A life of love: How to build lasting relationships with your children
John Ericson: Older Women: Save Your Heart, Prevent Stroke Don't Drink Diet
John Ericson: Why 50 million Americans will still have spring allergies after taking meds
Sarah Boesveld: Teacher keeps promise to mail thousands of former students letters written by their past selves
April 2, 2014
Dan Barry: Should South Carolina Jews be forced to maintain this chimney built by Germans serving the Nazis?
Frank Clayton: Get happy: 20 scientifically proven happiness activities
Susan Scutti: It's Genetic! Obesity and the 'Carb Breakdown' Gene
|
| |
Jewish World Review
Jan. 15, 2009
19 Teves 5769
Of Judges, By Judges, For Judges
By
George Will
| 
|
|
|
|
http://www.JewishWorldReview.com |
In November, 13,402,566 California voters expressed themselves for or against Proposition 8, which said that their state's Constitution should be amended to define marriage as a relationship between a man and a woman. The voters, confident that they had a right to decide this question by referendum, endorsed Proposition 8 by a margin of 52.3 to 47.7 percent.
Now comes California's attorney general, Jerry Brown — always a fountain of novel arguments — with a 111-page brief asking the state Supreme Court to declare the constitutional amendment unconstitutional. He favors same-sex marriages and says the amendment violates Article 1, Section 1, of California's Constitution, which enumerates "inalienable rights" to, among other things, liberty, happiness and privacy.
Brown's audacious argument is a viscous soup of natural-law and natural-rights philosophizing, utterly untethered from case law. It is designed to effect a constitutional revolution by establishing an unchallengeable judicial hegemony. He argues that:
| FREE SUBSCRIPTION TO INFLUENTIAL NEWSLETTER |
| Every weekday NewsAndOpinion.com publishes what many in the media and Washington consider "must-reading". HUNDREDS of columnists and cartoonists regularly appear. Sign up for the daily update. It's free. Just click here. |
|
The not-really-sovereign people cannot use the constitutionally provided amendment process to define the scope of rights enumerated in the Constitution; California's judiciary, although established by the state's Constitution, has the extra-constitutional right to supplement that enumeration by brooding about natural law, natural justice and natural rights, all arising from some authority somewhere outside the Constitution; the judiciary has the unchallengeable right to say what social policies are entailed by or proscribed by the state Constitution's declaration of rights and other rights discovered by judges.
What is natural justice? Learned and honorable people disagree. Which is why such consensus as can be reached is codified in a constitution. But Brown's reasoning would make California's Constitution subordinate to judges' flights of fancy regarding natural justice. Judges could declare unconstitutional any act of Constitution-revising by the people.
In a brief responding to Brown's, Kenneth Starr — former federal judge, former U.S. solicitor general, current dean of Pepperdine University Law School — notes the absurd consequences of the proposition that "the people can never amend the Constitution to overrule judicial interpretations of inalienable rights." Long ago, a California court struck down a Sunday closing law because "it infringes upon the liberty of the citizen, by restraining his right to acquire property." And a court struck down a law against scalping theater tickets because it violated rights "inherent in every natural person." By Brown's reasoning, judges could declare unconstitutional any constitutional amendment revising these judicial judgments.
Passing laws by referenda is an imprudent departure from the core principle of republican government — representation: The people do not decide issues, they decide who shall decide. But the right of Californians to make laws through the direct democracy of referenda is as firmly established as it is promiscuously exercised.
In 2000, voters passed Proposition 22, enacting a law stipulating that marriage is a heterosexual relationship. Last May, California's Supreme Court struck down the law on the ground that there is no "compelling state interest" in not recognizing same-sex marriages under the constitutional clause guaranteeing "equal protection" of the laws. Opponents of same-sex marriage quickly gathered sufficient signatures to place on the November ballot the amendment to the constitution.
The breadth and depth of California's toleration regarding sexual lifestyles refute the worry that gays are a vulnerable minority menaced by majoritarian tyranny. Proposition 8 merely restored to California law the ancient and nearly universal definition of marriage, a definition resoundingly endorsed by the U.S. Congress (85 to 14 in the Senate, 342 to 67 in the House) and written into the laws of 47 other states. California advocates of erasing the right to same-sex domestic partnerships could not even get sufficient signatures to put their measure on the November ballot.
Just eight years ago, Proposition 22 was passed, 61.4 to 38.6 percent. The much narrower victory of Proposition 8 suggests that minds are moving toward toleration of same-sex marriage. If advocates of that have the patience required by democratic persuasion, California's ongoing conversation may end as they hope. If, however, the conversation is truncated, as Brown urges, by judicial fiat, the argument will become as embittered as the argument about abortion has been by judicial highhandedness.
Brown's reasoning would establish an unassailable tyranny of a minority — judges — over any California majority. Brown, 70, California's former and perhaps future governor, once was a Jesuit seminarian. One American Heritage dictionary definition of "jesuitical" is "given to subtle casuistry"; one of that dictionary's definitions of "casuistry" is "specious or excessively subtle reasoning to rationalize or mislead." These definitions, although unfair to Jesuits, are descriptive of Brown's argument.
Every weekday JewishWorldReview.com publishes what many in the media and Washington consider "must-reading". Sign up for the daily JWR update. It's free. Just click here.
George Will's latest book is "With a Happy Eye but: America and the World, 1997-2002" to purchase a copy, click here. Comment on this column by clicking here.
Archives
© 2006 WPWG
|
|
Columnists
Toons
Lifestyles
|
