Free California

Free California

California’s fate today begins to suggest that of Tibet. It is a free and independent place with its own unique culture and vital life force, and its will is clear. But self governance is quashed by autonomous and arbitrary magistrates thousands of miles away.

Here is a proposed amendment for the fledgling California constitutional convention: “No one should judge Californians but Californians. The California Supreme Court is the supreme court in the land. Citizens of any sex, race, ethnicity, sexual orientation or religious persuasion or lack thereof can be California Supreme Court justices provided that they were born in the state and graduated from a California law school. (Law schools from Massachusetts, Connecticut and London don’t count. Different traditions, different culture, different values.)

The California Supreme Court’s ruling is the final appeal and the supreme law of the land. It can only be overturned by a majority vote in a state referendum.” Because freedom is not free and it must be taken because it is never given.

Virginia Governor Bob McDonnell said this weekend he was disappointed that the court overruled the “will of the people” in California. Federal dominance has been taken for granted since contention rose between Adams and Jefferson in the Marshall Court. But when these early cases are reviewed, the familiar political influence and shenanigans are uncovered. The question is who gives the federal courts the right to overturn the common will of the people? Can the courts give themselves that right? Why should the people abide by a ruling if it runs against their collective will and instincts?

In an opinion piece in The Christian Science Monitor, Jeff Amestoy writes, “If [U.S. District Court Judge Vaughn] Walker’s decision is ultimately affirmed by the US Supreme Court, state constitutional provisions in some 30 states restricting marriage to opposite-sex couples would be null and void.”

Judge Walker’s ruling may become historic not because of the substance of the issue – gay marriage – but because it occurs as new perspectives on state and regional sovereignty are awakening across America. And that which was universally taken for granted as egalitarian, right and enlightened just yesterday, can appear overnight as random, arbitrary, dictatorial and territorial when the sea changes.

creativ1

Michael--I think there's something here that needs clarification. "The will of the people" basically means majority rule, no? If a majority of CA voters decided that they wanted to castrate everyone with the first name "Michael" (which would include me), that doesn't make them right, and you and me wrong. It means that the rule of law no longer applies, and that we should not be considered a republic, but a democracy or oligarchy, correct?

MichaelBoldin

are you conflating the federal constitution and the california one? seems like it. one applies in certain situations and the other in other situations. but both do not apply at the same time.

Joseph Dobrian

Individual rights cannot, must not, be voted away by plebiscite -- and still less can such a pernicious procedure be immune to judicial review.

creativ1

I'm not siding with proponents of same-sex marriage. I'm merely pointing out the obvious--if we're going to enable the gov't to create special laws for one set of citizens, there's very little stopping them to doing it to others, including you and me.

MichaelBoldin

You\'re not comparing two similar things at all...of course the will of the people does not go as far as dismembering people.

The rule of law is the constitution - federal and state. The federal constitution leaves the question of marriage to the states (or out of government altogether)

The state constitution - THAT is where you make the argument that you are making. Does the CA constitution prevent the people from saying one group can be married and another cannot?

creativ1

My guess is no. But my libertarian tendencies tell me that state or federal gov't really lack a compelling state interest in marriage to begin with, absent a demonstrable harm to be prevented.

Quite frankly, this is not a state or federal issue where gov't is concerned. It is a religious issue that belongs with religious institutions. Same goes with marriage licenses, and divorce.

If conservatives in particular were really concerned about protecting traditional marriage, they would seek to abolish or rework no-fault divorce to make marriage an enforceable contract, (divorce by mutual consent?) and minimize the incentives for out-of-wedlock child births (child support), which began when someone back in the late 60's (LBJ?) thought it was a good idea to expand that scheme to all non-welfare divorcing or unmarried parents.

Same-sex marriage is not the issue. It's divorce.

Julie Mercer

Prop. 8 was not designed to "create special laws for one set of citizens" as you implied above. Nor was it for the purpose of denying anyone's individual rights. It simply defined marriage as between one man and one woman. I fail to see how that could violate CA.'s Constitution. Laws are enacted frequently in order to promote order, safety, and reinforce responsible behavior. Just because someone does not like the restriction does not make it constitutionally prohibited. However, I do agree that marriage legislation should be left up to each state to decide.

creativ1

I should add, under majority rule, people are capable of doing ANYTHING to one another.

theunknownamerican

The courts get their authority from the constitution just like any other elected person but that same constitution is also written by the democratic will of the people so judges can't overrule the people since they preside over the laws that the people create themselves. They are not above the supreme law (constitution) so they are bound by it which means that the judges ultimately obey the will of the people.

Jason

Appellate courts exist for the purpose of reviewing law and the constitutionality of the law.

The 14th Amendment says: "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny any to any person within its jurisdiction the equal protection of the laws."

Seems to me this judge did exactly what he is responsible to do, which is uphold the Constitution.

MichaelBoldin

on top of it - what IS there under this clause that a state CAN do? by your definition - nothing.

MichaelBoldin

Jason - for you to be correct, the phrase \"the privileges or immunities of citizens of the United States\" must have included marriages sanctioned by the state at the moment of the 14th amendment\'s ratification.

Can you point to anything that verifies that? In my studies on the subject, which have gone for a number of years, I have yet to see a single thing indicating what you claim.

Trackbacks

The Tenther Grapevine: The Tenth Amendment Center Blog

Subscribe and Follow

TAC Newsletter

Tenther Radio, Live!

Tenther Radio Archives

Tenth Amendment Center Main Feed

About

Credits