Really?, or is this only when you think they might side with your issues?
I can’t count the number of times when I’ve heard people claim that politicians are in the back pocket someone else and that often their votes reflect a bias or a greed and may or may not align with their constituents. Haliburton ring a bell?
Referendums are a good starting point to guage the publics interest or lack thereof on issues.
Good morning in return.
Feel free. I don’t think this is the case, so I may respectfully dissent.
Correct - arguable. However, if the Supreme Court disagrees with my argument, I have no practical way to appeal this. Or, if the people of Louisiana agree by a substantial majority that gay marriage is not included under the enumerated rights of the Constitution, then they get to be overrruled and their will disregarded.
True, but neither gay marriage nor abortion are universally agreed to be implied in the enumerated rights of the Constitution. My concern would be if the Court were to find, ipso facto, that they were. Based on whatever grounds they could find.
And if those grounds were as weak as I consider those put forth to justify the Supreme Court overturning every state regulation of abortion were, I would be concerned with the anti-democratic trend of yet another judicial decision imposed on the electorate regardless of their desire, and without adequate justification from the Constitution.
Here is where I believe you are the one having troubles with generalization, since I did not state that every decision with which I disagreed was judicial activism.
The problem with Roe v. Wade was that the Court imposed the decision based on nothing that involved the consent of the general population. The decision was not based on (to my knowledge) any general grassroots consensus that abortion was a Constitutionally protected right. So it was not based on “the will of the people” to any great extent. It was not based on the plain sense of the text, since, as I mentioned, the topic is never addressed in the Constitution. And there is no evidence that the Founding Fathers had any original intent that the Constitution should address the topic of abortion - at least, not as far as I am aware.
And therefore the trend of the Court in decisions such as Roe v. Wade and others is anti-democratic, and under circumstances that do not strike the average layman/voter as particularly clear or straightforward. And many of the objections of the average layman/voter to those decisions are met - not by you, but by some - with the kind of dismissiveness involved in the assertion that “everyone who isn’t a bigot or a fool agrees with me, so shut up and do as your betters on the Court direct”. Even, and possibly even especially when the average voter/layman tries to overrule the Court with referenda or pushing to elect politicians who agree with them on the issues.
Then you add to that the Court, in rationalizing some of its decisions, tends to interpret the Constitution in accordance to a strained and unnatural use of the language which leads it to apparently violate much more clear statements found elsewhere in the text. And again, those with the power to interpret the Constitution so as to say what they want, also hold the power to interpret the rest of the Constitution to not say what they don’t want.
It strikes me as a trend that works against the checks and balances on the federal government. And, as I see more and more instances of what looks to me like an abandonment of the traditional understanding of the limits on judicial power, I see more and more that there is nothing to act as a check on this trend.
And the trend is encouraged by those who believe that the activist judges will implement policies that they want, but know they cannot (at least so far) convince a majority of their countrymen to support. And so they want to be given what they desire by judicial fiat.
Which is all well and good so long as the judges do what they are expected to do. What worries me is the precedent that says the plain text of the provisions of the Constitution can be shaped to bring about anything desired.
Certainly it is true that any reading of the Constitution will involve a certain amount of interpretation. What bothers me, and what amounts to “judicial activism” in my eyes, is what is used to interpret. Not original intent, not the plain text as it would appear to an ordinary layman - but whatever an un-elected judge, answerable to nobody, decides is a Good Idea. And the hoi polloi whose will is being overridden get to shut up and like it.
Are you really so sure of what you will want, once the shoe is on the other foot? Suppose Bush is re-elected, and appoints a majority who decides that Roe v. Wade is a poor decision. So they overturn it. On what basis do you then argue that their decision is wrong, and Blackmun’s original one was right? Based on the Constitution? Nope, whatever the current Court decides is the correct interpretation is not subject to review by the likes of us. Based on the will of the people? If we don’t care what the Great Unwashed think in Lousiana about gay marriage, why worry about what the Great Washed think in New York or California?
Serious question - suppose you are right, and it isn’t “judicial activism” when the Court decides based on something other than what the Constitution actually says. And there really isn’t any problem with removing the traditional belief in limited government, and the Court can do whatever it likes. And Roe v. Wade is history, or gay marriage/civil unions/call it what you like is absolutely outlawed. Do you have a basis to object, or is this simply the Way Things Work?
Regards,
Shodan
I offer in rebuttal the case of the Alabama Chief Justice and the Ten Commandments. This is a case where the grassroots consensus was absolutely wrong. If it was put up to a vote, I guarantee you that it would be legal for the Ten Commandments monument to be placed in that courthouse. But it would still be wrong. The principle of judicial review exists to protect the minority from the tyranny of the majority. I have no problem with your issues with the logic of Roe v. Wade, but whether or not there is grassroots agreement with the decision is irrelevant.
That sounds like what a public opinion poll would be good for.
Well, with voting you stir up the people who feel most strongly about an issue. With polls you get whoever answers the phone.
There’s always a Constitutional Amendment, ain’t there?
If the masses really believe that those homos getting hitched is so horrible that the world will end, then they can gather the 2/3 majority in Congress and muster the required support from the state legislatures to make the Constitution more specific about it.
Well, I would say it is often irrelevant.
My point was that grassroots agreement is more relevant than the personal opinion of a judge, if there is nothing else (the plain text of the Constitution, for instance) on which to base a decision.
But you say that the grassroots consensus was “absolutely” wrong. Is there a general principle on which you are basing this, or is it an interpretation of the Constitution with which you agree and is therefore correct?
Put it this way - suppose the higher courts ruled that the separation of church and state were not being violated in any way by the monument. They could post a long explanation, I am sure, but that would be the bottom line - “it’s OK because we say so”. Do you have any basis for an argument that says they are wrong in an “absolute” sense? And what would be your recommendation if they dismissed your argument out of hand?
I guess I should say that I am both pro-choice, and don’t have any particular issues with gay marriage, providing both abortion and SSM are established according to principle and not on an ad hoc basis. In other words, I would be fine if Roe v. Wade were overturned, and regulation were returned to the several states. This is so even if many of the states outlawed abortion.
Almost the same for SSM. I don’t believe Lousiana ought to be forced into anything they clearly don’t want, absent some clear provision in the Constitution, a new amendment, or legislative action. Although the sticky part of that position is the Constitutional provision that states must recognize each other’s acts. How to resolve the interactions between a state that recognizes SSM and one that does not is clearly a complicated matter. But I would not support a resolution that simply forced one state to accept the decisions made by another.
Regards,
Shodan
If the Supreme Court had ruled the Ten Commandments to be appropriate for a public building, then I’d have to honor their ruling. The Constitution means what they say it does, and I’d be absolutely wrong.
That’s exactly what “the masses” are doing at the state level, and is supported by none other than John Kerry. I doubt that Kerry would push for such a thing if he were in the state legislature, but he clearly would vote for it.
Those pushing for a federal amendment (like Bush) surely know that it’s a lost cause, and are doing so to make a political statement.
Sorry, didn’t see this on preview.
There is, but as I mentioned, the same people who might interpret the Constitution to say it is allowed are the people who might interpret any amendments. See, for instance, the record of interpreting the Tenth Amendment for how it might work.
But the Constitution being specific or not is not the source of the problem. The Constitution is pretty specific in saying “the right of the people to keep and bear arms shall not be infringed”, and they have come up with lots of ways of doing it anyway.
But what I see as the assumption underlying your post is misguided. ISTM to be based on the idea that the court can do whatever it likes, provided it is not specifically directed otherwise. I see it the opposite way - the Courts cannot create new rights, because the Constitution vests that power in the states and the people - not the courts.
And, again, flip it around and see how it sounds.
If you see what I mean.
Regards,
Shodan
Actually, legislative decisions shouldn’t necessarily be based on the opinions of people who feel most strongly about an issue. As an extreme example, consider an issue where five percent are strongly in favour, five percent strongly opposed, and ninety percent completely indifferent. A random poll can detect the indifference, but a referendum cannot since only ten percent of the electorate bothers to show up.
In this particular Lousiana case, what was the voter turnout? If it was less than 64% (I suspect it was, but I have no data), then even a vote of 78% means less than 50% of the electorate supported the amendment (0.64 * 0.78 = 0.50). Should a sizable block of indifference be a barrier to individual rights?
What kind of case? A case claiming that the Full Faith & Credit clause requires (say) California to recognize a gay marriage performed in Massachusetts is pretty much inevitable, even though it will inevitably get shot down in flames. Actually, I kind of doubt the Supreme Court would even take such a case, since it would most likely be rejected quite rapidly in the lower courts. But I’m quite sure we’ll start seeing those kinds of cases pretty soon.
But if you’re looking for somebody to file a case that says there’s a federal constitutional right to same-sex marriage, don’t hold your breath. There is no federal case law in support of such a position. The Supreme Court even fired a shot across that particular bow in last year’s Lawrence v. Texas opinion, stating pretty clearly that just because you’ve got the right to diddle consenting adults of either gender certainly doesn’t mean you’ve got the right to marry consenting adults of either gender. So don’t expect that kind of case to appear anytime soon, or to get anywhere at all even if somebody did file one.
Well, that actually makes a lot of sense. I guess we can therefore look forward to 50 different state Supreme Court decisions and/or 50 dfferent state constitutional amenment fights. Not that I’m complaining about that, being a supporter of more state autonomy on these types of issues, but it sure looks like you chose the right profession! 
As you would expect, given that each state has its own marriage laws, and this is primarily (except for the FF&C question) a matter of state law.
Correct, however.
The percentage of indifference is directly related to the importance of the issue (relatively speaking). If most people could care less, then only those that care get to make the decisions. In reality, you wont have all the drama this topic creates and then have no one show up at the poles.
I don’t care if it’s a 95% majority who don’t want it, they don’t have an absolute right to forbid it to the other 5%, unless they can demonstrate convincingly that irreparable social harm will result unless majority rule is upheld. Using such plattitudes as “moral fabric” and “following Jesus’ teachings” does not make for terribly concrete arguments in cases that are supposed to be decided by impartial courts. Yes, it is necessary, sometimes, for judges to modify or strike down laws enacted by “the people”. Sometimes the majority is simply wrong, and the court system is what stands as a balance against the other two branches of government.
All lovers of tolerance and understanding have been rolleyed here!
I hold the radical notion that no form of “marriage” should be recognized or sanctioned by the State; rather, I think any two consenting adults under any circumstances should be allowed to enter into a “civil union”, which carries with it enough legal liabilities (a la present-day legal “marriage”) to make frivolous entry into union an undesireable practice.
But instead of aspiring to that goal, pro- and anti-gay alike have chosen to do battle over what is essentially a religious issue. It’s too bad, because the backlash the OP rightly identified was one I predicted the day the MA SJC legalized gay marriage here. Their (the MA SJC’s) progressiveness is admirable, but they suck as political strategists. Gay marriage prohibition just isn’t seen the same way by most as Jim Crow, no matter how hard or reasonably proponents try to draw parallels. When legislating from the bench, judges would do well to be mindful of political currents outside of their jurisdiciton (we can dispense with the myth of blind interpretation of the Law, since no jurist’s ruling on contentious issues of legality I have ever seen has been free of “ideological taint”). Interpreting the law to allow civil unions without thrusting the marriage issue into the forefront prematurely would have been wiser. Perhaps not more immediately moral, but wiser, in the long run.
Then you misconstrue my meaning. Unless the Constitution specifically gives the Legislature the right to govern, then they’ve got no business passing laws on an issue. What the Supreme Court does is rule in cases where the petitioners feel the Legislature has overstepped it bounds.
Banning marriage to one group of consenting adults is one of those areas. Unless you disagree with Loving, in which the Court specifically says that* “freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men”*, then the Legislature should have to provide a reasoning beyond “because the bible tells me so”, because that’s not a legitimate reason. To violate a “vital personal right” should require at least “the infringement is narrowly tailored to serve a compelling state interest”. Where is the compelling state interest?
And as Neurotik pointed out before, you can’t just turn the arguement around because the positions are not equivalent. One is discriminatory against a class. The other is to allow full equality. Or to borrow Neurotik’s phrase, One is enlightened and one is stupid bigotry.
Well, let’s take a quick stride backwards and define our terms, here.
First, “judicial activism” seems to be very much a subjective term, its referent being to decisions interpreting the Constitution in ways that the person criticizing them does not approve of. Save for a bit of verbiage that ignores the entire concept of “law” as an entity distinct from mere codifications of statutes, to the effect that “Judges should not make law,” the referents have no problem with judicial interpretation, but believe it to be improper to construe the generalized protections of the Constitution into specific instances when the construction is one they disapprove of. (Never mind that the application of generalized law to decide specific cases is the entire reason behind the court system.)
Second, “marriage” means a host of things, and confusing the differences between them is at the heart of the dispute here. With no personal slight intended to any one individual, I wish that I had authorization to give a good swift kick to all persons who maintain that their church’s opinion of what constitute a marriage is the official one, and also to all persons who maintain that the state should get completely out of the marriage business.
Like it or not, it is a civil institution, with important functions in the legal fabric of our society. That means that no church gets to define what it is on the basis of their church’s views, and it also means that those who would abandon it to the religious sphere have a severe case of rectofossal ambiguity.
First, as the term “common-law marriage” testifies, a marriage is first and foremost the agreement of two people to live together as a married couple. Preachers may expostulate, and legislators legislate, but people are going to continue shacking up because they want to be a couple who live together and share all aspects of their lives – and they’ve been doing it since the Neolithic revolution.
Second, for very good reasons involving the ownership and distribution of property, the need to assure women of support while they are devoted to the bearing and raising of children generally, and society’s interest in assuring the proper care of the young, the idea that that shacking up should be recognized by the state has been a pretty standard institution. And, as with all things, whenever a bureaucrat is called on to recognize something, he instinctively hastens to regulate it.
Finally, the idea that this “love written in the stars and fated to be” should be celebrated by a union pledged before the deity in question (which also serves to strengthen the formal commitment involved, when the people concerned are ones who take invoking the deity on their vows seriously) has led to religious recognition of marriages and their celebration of the weddings that commence them. And of course the churches get to decide under what terms they will solemnize a marriage.
Whether or not a gay marriage is included in its ambit, though, marriage was defined by the Supreme Court as a fundamental right in Loving v. Virginia, presumably one of the unenumerated rights that the government is not permitted to disparage. Unless a strict constructionist is prepared to say that the omnipotent and allegedly beneficient government grants people the privilege to marry, which they do not have the right to do otherwise, the issue reduces to the question of whether or not a gay couple wishing to exchange vows and live in the manner to which married couple are accustomed should have legal recognition of their right to do so. (That they have that right to establish a marriage is unexceptionable – remember the “common law marriage” discussion above? And what the court said in Loving? The only question outstanding is whether the state may legitimately refuse to recognize their marriage.)
I thought our own minty green addressed that earlier:
If **minty **is right, and I’m thinking he is, then this will be decided by each state alone, not by the SCotUS.