Monday, May 19, 2008
California, here we come…
Posted by: Fred Thompson at 9:50 AM
Nowadays everyone feels entitled to their Andy Warhol-esque “15 minutes
of
fame.” Fairly normal people will bust a gut to get a few seconds on
television. Physical harm is likely for anyone standing between a camera
and
blow-hard politicians desirous of hawking legislation they and everyone
else
know will never be enacted. The rich and vacuous, seeking to make a
difference, weigh in against the world’s problems to great fanfare
amidst
black ties and eco-talk press conferences.
And all of them seem to be making lots and lots of money.
Now, consider the plight of the poor jurist in all this, especially
appellate judges. Often a lot smarter and making a fraction of the money
than the lawyers who appear before them, they labor in obscurity with only
their clerks and a handful of others in the legal community appreciating
their brilliance and understanding how truly im****tant they are.
Picture them as they retire to their chambers to study some obscure point
of
law that nobody cares about but the litigious ingrates in the case before
them. His Honor has little op****tunity for grand gestures or heroic
initiatives.
The judge’s job is simply to apply to the cir***stances of the cases
that
are brought to their court the laws that have been written by lesser
mortals. The job requires restraint, modesty, and reverence for the
established rules of society. The judge is obliged to uphold the status
quo
until the people decide to change it. Where is the glory in that, for
Pete’s
sake?
Then, like manna from Heaven, “The Case” comes before his court –
the case
that can change his ignominious plight. With a few of his like-minded
colleagues, he can, in effect, reshape the legal landscape, become a
leader
of a great cause, get the publicity equivalent to the cover of Rolling
Stone, and be hailed be the mainstream press. It dawns on him that he and
his buddies on the court can do things that those politicians could never
achieve – things that the unenlightened, unwashed herd, otherwise known
as
“the people” would probably never choose to do.
Now that’s real power! That’s delivering “change we deserve.” All
he and a
few of his colleagues have to do is discover in their constitution a right
previously unknown that has been hiding there in plain sight for about 150
years.
Ladies and gentleman, I give you the California supreme court majority and
their recent opinion in the same-*** marriage complaints filed by multiple
San Francisco gay couples.
On a more serious note, this decision follows “judicial lawmaking” on
the
subject by courts in Massachusetts, New Jersey, Vermont, and Iowa (though
many other state courts have heeded their limitations), and causes
sup****ters of the rule of law and the will of the people to rally in
response. Those in California say that they will fight for a
constitutional
amendment. This response highlights the invidious effects of this kind of
judicial activism, which reverses the way things are supposed to work in
our
legal system. These courts, with the stroke of a pen, are now, in effect,
amending their constitutions and placing the burden of changing it back
(usually a very difficult task), on the people.
Nationally, as a result of this case, there will undoubtedly be renewed
calls for a federal constitutional amendment outlawing same-*** marriage.
Conservatives should resist the temptation to sup****t such a remedy.
States
must solve this problem for themselves. They cannot and should not be
saved
from themselves or absolved of the responsibility that they have, a
responsibility protected against federal intrusion by the Tenth Amendment.
In the first place, playing the game of judicial activists, and leaping to
the federal-constitutional-amendment remedy every time judges misread the
constitution and change the law, is a fool’s errand. Passing two-thirds
of
both houses of Congress and three-quarters of the state legislatures has
proven to be an impossible hurdle for the marriage amendment and many
other
proposed constitutional amendments, even when Republicans controlled
Congress.
More fundamentally, the issue presented is not whether conservatives will
get their way on the issue of same-*** marriage. The issue is, in our
system
of government, determining the appropriate place for this issue to be
decided. For over 200 years marriage and related issues have been the
province of state, not federal law. That is where it should remain.
States,
acting within their appropriate and constitutionally vested realm, should
be
free to have laws that even you and I disagree with as long as they do not
violate established constitutional principles.
For years, legal critics clamored for federal tort reform, which for most
of
them meant the overriding of state law. After years of unsuccessful
efforts
by reformers, states finally started accepting their responsibility. State
after state passed tort-reform legislation, and maintained their rights to
fa****on their reform measures as they saw fit with the happy byproduct of
lower insurance rates and an influx of new businesses. Those states which
do
not act, or act unwisely, face a competitive disadvantage with other
states …as they should. This is called – say it all together –
federalism.
It is an im****tant part of our constitutional framework, based upon our
founders’ abhorrence of too much centralized power.
So, more power to the people of California in their uphill battle for an
amendment to their state constitution. But the real, long-term solution in
the future for sup****ters of the rule of law is ensuring the selection and
election of good judges, judges who know their role in a constitutional
republic, in the first place, and holding them – and the politicians who
appoint and confirm them – accountable.
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