Looks Like Democracy

It looks like democracy, and we hope the spirit is catching - the legislators in Connecticut are poised to pass a bill creating gay civil unions, with an amendment specifically stating that this is *not* marriage.  The Republican Governor had been coy on the earlier bill (lacking the cosmetic amendment) already passed by the State Senate but has said she will sign this one.

And the Times puts in the closing paragraphs what I would put near the top (and what Newsday put in the lead):

If the civil union measure becomes law, Connecticut would become, after Vermont, the second state to allow the unions, and the first to do so without pressure from the courts. Vermont and Massachusetts, which last year began allowing same-sex couples to marry, adopted their policies after courts found that gays were being denied constitutional rights.

Emphasis added.  My goodness, I know Connecticut is a strange shade of Blue - we are home to Joe Lieberman, the Democrats beloved by Reps, and Chris Shays, the Republican beloved by Dems.

But surely, there is some other Blue State where Dems could try this radical-for-their-party approach of writing a bill and then passing it, rather than relying on the courts to advance their party's agenda.

MORE:  Church and State in Connecticut.  Incredibly, I go to the other Episcopal Church, so my local coverage and insight is woefully lacking.

UPDATE:  Here is the WaPo lead:

Connecticut's House of Representatives passed legislation Wednesday that would make the state the second to establish civil unions for same-sex couples, and the first to do so without being directed by a court.

And from an earlier story:

"The importance of how this is happening here can't be underestimated," said state Sen. Andrew McDonald (D), one of Connecticut's few openly gay legislators and chairman of the judiciary committee. "Those who are most adamant about denying these rights say they were being forced on the public by judges. We have elected officials leading the way."

"Can't be underestimated'?  Tell the Times.

Comments

[TexasToast]

Very “artful” judiciary bashing! :)

Last time I checked - 7 of the 9 current serving justices of SCOTUS were appointed by - Republicans? Say it ain’t so!

"But surely, there is some other Blue State where Dems could try this radical-for-their-party approach of writing a bill and then passing it, rather than relying on the courts to advance their party's agenda."

But Tom, your boy Delay tells us that Democrats don’t have an agenda! He also says, “I said something in an inartful way, and I shouldn't have said it that way, and I apologize for saying it that way," he said. "It was taken wrong. I didn't explain it or clarify my remarks, as I'm clarifying them here. I am sorry that I said it that way, and I shouldn't have”

translated

I’m not sorry for bashing the judiciary – I’m just sorry people got mad about it.

[TM]

your boy Delay tells us that Democrats don’t have an agenda!...

Well, at the national level, I think it is fair to say that the Dem agenda is to duck and cover, while waiting for the Federal courts. The Ninth Circuit, in CA, is their best bet, of course.

I want to get this WaPo lead into the mix, as a further bit of self-congratulation/Times derogation:

Connecticut's House of Representatives passed legislation Wednesday that would make the state the second to establish civil unions for same-sex couples, and the first to do so without being directed by a court.

[TM]

Oregon will try the old-fashioned route towards civil unions:

Vermont is the only state that legally sanctions civil unions, but both Oregon and Connecticut are debating legislative measures that would make that option open to gay couples.

...In Oregon, where Gov. Theodore R. Kulongoski introduced a bill this week to require civil unions under the State Constitution, ...

[TexasToast]

This is probably because the Oregon Supreme Court just invalidated all the same sex "marriages" performed last year even before the constitutional amendment banning them was passed. Darned "activist" judiciary!

[ed]

Hmmm.

People like to point out that such-an-such judge was appointed by a Republican. What this ignores is that Republicans have often tried to extend a hand across the aisle by appointing liberal judges. In every case the response has been a slap in the face by Democrats.

I think the time is now to simply stop this ridiculous practice. If a Republican appoints a judge, let that judge be a conservative. If Democrats want to get a liberal judge appointed, then let them win elections.

[TexasToast]

"If Democrats want to get a liberal judge appointed, then let them win elections." - Ed

I apologize in advance for the multiple posts, but this "judicial activism" meme gets under my skin. The most obvious case of "judicial activism" in recent history is the decision by the SCOTUS in Bush v Gore in which they found an equal protection clause violation that had never existed before and proceeded to insure that it would never be found again by saying that the case had no precedential value. The Democrats lost that election 5-4.

"So, is this is a "stepped up" attack, or is Mr. DeLay engaging in a face-saving lateral to Sensenbrenner's committee, where the topic can die in dignity (and without Congressional or media scrutiny)?" - TM

“I blame Congress over the last 50 to 100 years for not standing up and taking its responsibility given to it by the Constitution. The reason the judiciary has been able to impose a separation of church and state that's nowhere in the Constitution is that Congress didn't stop them. The reason we had judicial review is because Congress didn't stop them. The reason we had a right to privacy is because Congress didn't stop them.”

Sounds like Tom Delay wants Congress to act so as to do away with the establishment clause (Congress shall make NO law respecting an establishment of religion...), judicial review (Marbury v Madison), and the right of “privacy” (Griswold V Conn). The only example of “judicial activism” in this paragraph is the “privacy” right established in Griswold v Conn. Other than that, it seems to me that he is picking a fight with James Madison, Alexander Hamilton and John Marshall (only one of whom might be described as "liberal")in three succinct sentences. I would say that this can reasonably be described as a “stepped up attack”.

There is a democratic answer if we as a society wish to change these things. Its called amending the constitution.

I’ll shut up now.

[Cecil Turner]

"The most obvious case of "judicial activism" in recent history is the decision by the SCOTUS in Bush v Gore in which they found an equal protection clause violation that had never existed before . . ."

As opposed to the view that a state constitution was sovereign over a process that is specifically designated in the US Constitution as the purview of the legislatures? Sorry, but whatever you think about the USSC decision, the SCOFL decisions that were overturned were much worse.

"This is probably because the Oregon Supreme Court just invalidated all the same sex "marriages" performed last year . . . "

Of course, they could as easily have upheld them, arguing as Multnomah County commissioners did, "that not doing so would violate the Oregon Constitution."

"Darned "activist" judiciary!"

The court giveth, and the court taketh away, eh? Sorry, TT, but that's exactly the problem. It's not an equal rights question, and it's not a court function. Legislating from the bench (or the latest craze, looking for guidance from foreign legal precedent) is out of control. It's not a question of which way they decide these cases, it's a matter of following the law (preferably the type made by legislatures and signed by executives). "Interpreting" new rights from existing constitutions is dubious, but making them up by cherry-picking from international case law is ridiculous. The only problem I have with those who want to impeach a couple of judges is their priorities: Ginsburg first!

[TexasToast]

Cecil

Go read Federalist 78.

[Cecil Turner]

"Go [re]read Federalist 78."

Let's see: independent judiciary, judicial review, judges appointed for life (subject to good behavior). Okay, works for me.

However, I would suggest the following passage is dated (and the point of contention):

"The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever." [emphasis added]

Would that were the case. I would also point out there is no clause in the Constitution entitled "interpreting the Constitution," and that Marbury v. Madison was itself an expansion of the judiciary's power (one I'm usually quite comfortable with). But if that interpretation is going to redefine millennia-old institutions, or rely on foreign case law, I'm considerably less thrilled with it. In a perfect world, the SCOTUS would police its own branch. But if they are unable or unwilling to do so . . . (and impeachments do not require a constitutional amendment).

[Cousin Dave]

Getting back to the topic: However this comes out, bully for Connecticut for doing things the right way. Let the people's elected representatives decide: what a country! In fact, I will withhold my own opinion on this, and say that whatever the result, the people of that state have chosen and I will respect that choice. And if they choose the reverse sometime in the future, I'll respect that too. This is the big laboratory of democracy at work. Let's watch and learn from it.

[creepy dude]

"Activist" seems to mean decision I don't like.

But for people who use the term, please clarify:

Was Korematsu vs. United States an "activist" decision or whatever the opposite of activist is?

If it was "activist" please to tell how, as one of the interred might say.

If it was not an "activist" decision, and thus presumably the very essence of what proper court decisions should be, please clarify why you are a fascist moron.

[Cecil Turner]

"If it was not an "activist" decision, and thus presumably the very essence of what proper court decisions should be . . ."

Are you suggesting there's no such thing as a "not activist" yet "bad" decision? (If all skunks stink, does that mean all non-skunks smell good?)

". . . please clarify why you are a fascist moron."

Looks to me like a primer in specious logic-chopping: a converse argument, false dichotomy, ad-hominem, and perilously close to a Godwin's law violation. All in one sentence! If meant as an exercise, very nice.

[Appalled Moderate]

Cecil:

The SCOTUS rulings where foreign law has been called upon are death penalty cases, which rely on the "cruel and unusual punishment" clause in the Bill of Rights. Looking upon international law to determine if a form of punsishment might be unusual doesn't strike me as an...um...unusual line of inquiry.

[creepy dude]

Quite the contrary-some people do think Korematsu was the right decision, i.e. Michelle Malkin. There's a term for those people-fascist morons.

And if you're going to call Godwin in a discussion of a WW II decision-stifle it already.

I agree-Korematsu was not an activist decision. But not only was it a "bad" decision, it's one of the top 10 worst and an outright betrayal of what America stands for.

However, if the dissent had prevailed, it would undoubtedly be seen an "activist" decision, since it would have struck down an Act of Congress, An Executive Order, a command of the U.S. Army, and run counter to popular opinion. (If that wouldn't be an "activist" decision, then the term has no meaning).

Logical conclusion-sometimes "activist" decisions are exactly what the country needs.

[creepy dude]

Furthermore-CT, you say above: "It's not a question of which way they decide these cases, it's a matter of following the law (preferably the type made by legislatures and signed by executives)."

How would you have decided in Korematsu vs. U.S.?

Why do you think it's a "bad" decision, (if that's what you in fact think)?

[creepy dude]

Thinking about it now, I see how Republicans approach this issue:

We have three co-equal branches of government, but some branches are not as equal as others.

[TexasToast]

Cecil

Marbury was an expansion only if you believe that the framers didn’t intend for courts to have the power of judicial review – a belief rather inconsistant with what Hamilton is saying in Federalist 78. I find it interesting that you parse Hamilton the way you do – so as to reach a conclusion that is fundamentally different from the document as a whole. It’s like a blind man describing an elephant after touching his trunk.

As to the abomination of foreign law, there is a large difference between "persuasive authority" and "controlling authority". Ginzburg is not suggesting that foreign law should be controlling authority. Using foreign legal opinions for persuasive purposes shouldn't be controversial. It might just sharpen the judge's argument as to why he ruled differently. Moreover, a great deal of our law comes from other legal traditions - community property, for instance, is a Spanish law idea, there are two distinct theories on water rights coming from two traditions, etc. Then there is the entire state of Louisiana. Foreign opinions might just help the judge understand where the law has been, so he can understand better the current law and apply it to the new facts.

The common law function of precedent did not stop with the ratification of the American constitution - nor should it. You may not like European thinking on issues like capital punishment, but ignoring it will not result in better American jurisprudence. The use of precedents, even foreign precedents, is not in any way a surrender of sovereignty by our courts nor is it a grant of jurisdiction to foreign courts, as some would have us believe. Hardly an “abomination”, such an argument is a classic straw man.

As to impeachment, I seem to recall that many wanted to impeach Earl Warren after Brown v Board of Eduction.

[Cecil Turner]

"The SCOTUS rulings where foreign law has been called upon are death penalty cases . . ."

Oh, well, that's okay then. And I suppose when the framers wrote "cruel and unusual," they of course expected that to be modified by current European law (which forbids any death penalty), no? Just one minor point, if the court (or certain members) are making up the rules out of whole cloth, why should they stop there?

"And if you're going to call Godwin in a discussion of a WW II decision-stifle it already."

Other than your Korematsu non-sequitur, this is not a discusson of WWII.

"Logical conclusion-sometimes "activist" decisions are exactly what the country needs."

Hey, if the legislatures can't be trusted to make laws, let's just disband 'em and let the courts do it! Sorry, Dude, there ain't no logic in that there conclusion.

[creepy dude]

CT-don't duck the question-was the Korematsu decision correctly decided?

[creepy dude]

I'll presume good faith, take your non-response as a "no", and assume your entire worldview has crumbled since its now clear judicial activism is sometimes required.

Now I know Repubs (correctly) say that the other branches can also interpret the Constitution, and (correctly) point out The Pres et al. take a sworn oath to uphold it. But their actions speak louder than their words.

Like here's President Bush's official statement of his principles on campaign finance reform*

" President Bush supports including a non-severability provision, so if any provision of the bill is found unconstitutional, the entire bill is sent back to Congress for further adjustments and deliberations."

Now doesn't President Bush have a duty to determine ON HIS OWN if any provision of the bill is unconstitutional, and if so, veto the damn bill?

Answer: Yes. That law isn't just unconstitutional, it's anti-constitutional.

Yet here's President Mush officially passing off his sworn duty to the courts, and ha ha ha the court stayed passive just like Repubs want and didn't strike it down. Too bad the joke's on freedom loving Americans like me and Rush Limbaugh and Senator "I think that the McCain-Feingold bill is unconstitutional" Hatch.

So let's end the charade that the Courts are the only branch trashing the Constitution.

*http://www.whitehouse.gov/news/releases/
2001/03/20010315-7.html

[Cecil Turner]

"Marbury was an expansion only if you believe that the framers didn’t intend for courts to have the power of judicial review"

Only if you interpret Marbury strictly, that would be true. There's little argument that the Supremacy Clause and judicial review were well-established principles. However, the role of the Judiciary as supreme arbiter of the meaning of the Constitution--which most (including you, I suspect) read into the decision, is quite novel, and definitely an expansion.

"It’s like a blind man describing an elephant after touching his trunk."

[Snort.] If you don't read that particular section of Federalist 78 as an attempt to assure that the Judiciary can't run amok because it doesn't have the power to initiate action, I suggest you re-read it.

"CT-don't duck the question-was the Korematsu decision correctly decided?"

I'm not following you off-topic into Korematsu. There are no doubt hundreds of bad laws, some of which were upheld by SCOTUS. That does not imply the Judiciary must replace laws with decisions. And again, judicial review is not necessarily "activism." Court orders to enact legislation (e.g., to provide gay couples with "equal rights") is.

Now doesn't President Bush have a duty to determine ON HIS OWN if any provision of the bill is unconstitutional, and if so, veto the damn bill?

Now, that would be my interpretation of the Constitution (and Marbury). Unfortunately, some Judicial Supremacists would not agree.

[TM]

Logical conclusion-sometimes "activist" decisions are exactly what the country needs.

The question of whether judges should follow even laws they disagree with was addressed quite nicely in "A Man For All Seasons" (yes, one of my points is that that question hardly originated with Korematsu).

I have absolutely no problem thinking that the original law was a mistake and that the court erred in failing to strike it down. So what? Surely it depends on *why* I think the law was a mistake. If, for example, it strikes me as unconstitutional, then it is the court's job to say so.

But, if I think it is just bad public policy - death penalty cases, for example - then those laws should be struck down by legislators. Maybe US citizens can figure out their own contemporary standard of "cruel and unusual", and pass the appropriate laws. Maybe if the good people of the great (swing) state of Missouri think that offing a seventeen year old works for them, I should accept that. But that is a very different constitutional principal than the one at issue in Korematsu.

If I am following his elusive logical trail, Creepy wants to argue that if the Court had advanced plausible constitutional arguments against Korematsu, it would have been denounced as "activist". What is the evidence for that? Do scholars today consider Korematsu to have been well-reasoned? Dred Scott is cited by some as a morally deplorable example of run-amok "original intent", but views differ - Abe Lincoln thought it was activist.

And what is the point - are we meant to infer that, since the court should have struck down a morally obtuse by constitutional law in one bad case, all subsequent examples of activism are acceptable? Is it necessary to point out how silly that is?

BTW, here is an interesting aspect of Korematsu:

Their efforts ultimately uncovered documents that clearly showed the government concealed evidence in the 1944 case that racism — not military necessity — motivated the internment order. More than 39 years after the fact, a federal judge reversed Fred Korematsu's conviction, acknowledging the "great wrong" done to him.

Hmm, maybe the 1944 court made a reasonable decision based on misleading evidence - beats me. But the second paragraph of the ruling says this:

It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.

Did the court have accurate info in 1944? Was the "uncovered evidence" just a fig-leaf to give them an excuse to back-pedal?

Or are we not able to gauge the "public necessity" in 1942?

Well, it is clear that any defense of this decision qualifies one as a, hmm, let me look back, "fascist moron", so presumably there is a lot more to the story of which I am unaware.

[ed]

Hmmmm.

"Quite the contrary-some people do think Korematsu was the right decision, i.e. Michelle Malkin. There's a term for those people-fascist morons."

Far better than being a whiny-jackass I suppose.

Activist = views the Constitution as a "living document" that can be mangled at will.

Non-Activist = views the Constitution as NOT a "living document" but as a permanent guide that shouldn't be re-interpreted at will.

Korematsu decision = Was correct. The courts DO NOT HAVE THE AUTHORITY to tell the President how to win a war. Lincoln was right to spank the Supreme Court, FDR was right to slap it. Bush, or a successor, might have to do the same to the current court. A decision by the Supreme Court is not a suicide pact.

"Looking upon international law to determine if a form of punsishment might be unusual doesn't strike me as an...um...unusual line of inquiry."

Looking to international law, and unapproved treaties where exceptions have already been reserved by the US government, are ENTIRELY outside of the Supreme Courts authority. It is extremely disturbing that the Court would do this as they are sworn to uphold the US Constitution. So what would the outcome be if there was a direct conflict between the Constitution and a dearly held principle, supported by a foreign law, held by a Supreme?

As in the Michigan diversity ruling, by Sandra O'Connor, the CONSTITUTION is the loser.

The Constitution is not a living document. It is the guide that keeps us within reasonable bounds. Every act of judicial activism has resulted in death and/or substantial injury.

Isn't it amusing that judicial activism has always been the hallmark of the Democratic Party. Even before Dread Scott.

...

And last but not least. Creepy-dude, if you want to debate, then debate. If you want to act like a schmekel, then I guess you gotta be you then.

[creepy dude]

Well you are wise to stroll away from Korematsu, CT. People who decry judicial activism have to contort themselves into idiotic positions in its analysis.

The odious Mark Levin, for example. He had to engage Korematsu since his new book addresses how the courts are destroying America.

Now remember in Korematsu-the S. Ct. upheld an Act of Congress, an Executive Order, The U.S. Army, and popular opinion.

For whatever reason, Levin chose not to go the Malkin route and support Korematsu. But now he's faced with an awful decision that upheld the decisions of the other two branches and the peole at large. What is to be done?

Ah-ha! Levin characterizes Korematsu as an "activist" decision because the Court did not follow the Constitution!* Now he can continue to decry "activism."

To your credit, CT, even you held back from such blatant stupidity.

Still you ought to get better spokemen to argue your cause.

*http://www.humaneventsonline.com/article.php?id=6645

[creepy dude]

TM-there were dissenting justices in Korematsu you know.
Just read Justice Murphy's dissent. False evidence or not, men of discernment were right there to make the right call. Everyone else should hang their head in shame.

Michelle Malkin (A Bigfoot on your blog roll I note) thinks Korematsu was correctly decided. As she rightly notes, it's never been overturned to date.

Mark Levin thinks it was wrongly decided, an activist decision, and credits Reagan's disgust at the decision as one of his inspirations as President.

Tell me who's right here, TM, Malkin or Levin?

If even two right wing-nuts can't agree on what activism is-what's the point? You're reaching for bright line distinctions that don't exist. It's just another political argument trying to cloak itself in some sort of dispassionate legal analysis mumbo-jumbo.

[creepy dude]

"Their efforts ultimately uncovered documents that clearly showed the government concealed evidence in the 1944 case that racism — not military necessity — motivated the internment order."

This was hardly a secret in 1944. From Justice Murphy's brave dissent:

"Justification for the exclusion is sought, instead, mainly upon questionable racial and sociological grounds...I dissent, therefore, from this legalization of racism."

I suppose 50 years now people will be shocked to discover that people opposed to gay marriage were motivated more by hatred for gays than love of marriage., though some of us can see it now.

[creepy dude]

Ed-I congratulate your intellectual consistency in arguing Korematsu was correctly decided.

[Cecil Turner]

"Well you are wise to stroll away from Korematsu, CT. People who decry judicial activism have to contort themselves into idiotic positions in its analysis."

Puh-leeze. Are you seriously claiming the only possible remedy is through judicial activism? How does that square with your other argument ("doesn't President Bush have a duty to determine ON HIS OWN if any provision of the bill is unconstitutional . . ."?). Hint: it doesn't.

[TexasToast]

"However, the role of the Judiciary as supreme arbiter of the meaning of the Constitution--which most (including you, I suspect) read into the decision, is quite novel, and definitely an expansion."

It is?

“The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

. . .

If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.
Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

[creepy dude]

"If, for example, it strikes me as unconstitutional, then it is the court's job to say so."

This is why this argument is silly. One person's constitutional crisis is another's minor state prerogative.

I don't care if every last person in Kansas, including all the homosexual turnip farmers (don't ask, voted to ban gay marriage in Kansas. To me, barring gays from marriage violates their equal protection rights and all such laws are unconstitutional and should be struck down.

I know you'd say gay marriage is just a public policy dispute, and you'd be right. Not because you're right per se(you're wrong imho) but because way more people agree with you than me. There is no ultimate arbiter to decide who's really right either-thus it's all politics once again.

No matter how "activist", the court can never get too far ahead of public opinion. If 90% of people in this country wanted abortion to be illegal, Roe v. Wade would have been swept away long ago. So this current drive by Repubs is just that-naked politics-yet they want to wrap themselves in principle-so they invent one, i.e. stop judicial activism.

When you point out a lot of Republican judges disagreed on Schiavo-they don't care. It's just the old "misdirect the people's attention by naming a scapegoat enemy" play.

Go look at the ad DKos has as an fpp post right now. It's sickening.

[Cecil Turner]

" . . . where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental." [emphasis added]

I don't think anyone is suggesting the Court needs to start upholding convictions under ex post facto laws. As long as the Judiciary is regulating its own decisions by referring to the Constitution, that's standard judicial review, which is not in dispute (and did not start with Marbury). Contrast that with, say, court-ordered bussing of schoolchildren (or, more topically, mandating the issuance of marriage licenses to gay couples), or any other act by the Judiciary which imposes its interpretation of the Constitution on the other branches' actions. That leads to wonderfully democratic scenes like that in the Oregon case cited above:

Legislators had been waiting for the court's ruling for guidance. On Wednesday, Democratic Gov. Ted Kulongoski said he will push for a law allowing gay couples to form civil unions that would give them many of the rights and privileges of marriage. [emphasis added]

"To me, barring gays from marriage violates their equal protection rights and all such laws are unconstitutional and should be struck down."

"Banning" gays from "marriage"? Again, it's hard to imagine the framers (or subsequent authors of various state constitutions) intended to redefine a millennia-old institution when they drafted their respective charters. "Finding" such a right in those texts is nonsense. You want gay marriage, get it passed in a legislature. The People are not subservient to the Judiciary, and lobbying the 9th Circuit (because the issue is a loser everywhere else) is not a rational basis for government.

[TexasToast]

"'Finding' such a right in those texts is nonsense. You want gay marriage, get it passed in a legislature. The People are not subservient to the Judiciary, and lobbying the 9th Circuit (because the issue is a loser everywhere else) is not a rational basis for government."

CT

"The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body."

Alexander Hamilton

“Mr. Marshall has made his decision. Now let him enforced it.”

Andrew Jackson

“Now the U.S. Supreme Court has spoken. Let there be no doubt, while I strongly disagree with the court's decision, I accept it. I accept the finality of this outcome which will be ratified next Monday in the Electoral College. And tonight, for the sake of our unity of the people and the strength of our democracy, I offer my concession.”

Al Gore

“Today I have stood, where once Jefferson Davis stood, and took an oath to my people. It is very appropriate then that from this Cradle of the Confederacy, this very Heart of the Great Anglo-Saxon Southland, that today we sound the drum for freedom as have our generations of forebears before us done, time and time again through history. Let us rise to the call of freedom-loving blood that is in us and send our answer to the tyranny that clanks its chains upon the South. In the name of the greatest people that have ever trod this earth, I draw the line in the dust and toss the gauntlet before the feet of tyranny . . . and I say . . . segregation today . . . segregation tomorrow . . . segregation forever.”

George Wallace

I’ll take my place beside Alex and Al in support of the necessity to defend the rule of law and the necessity for an independent judiciary to determine what the law is. While I may strongly disagree with a court’s determination, taking the position that courts have no more power to determine what the law is than any other branch of government (or that their determination “actively” thwarts democracy, as CT seem to do) strikes me as damaging and denigrating a fundamental underpinning of respect for the rule of law.

Time did not stop in 1787. The law must and will change over time. The whole reason for courts is to determine how the rules apply to events and issues that were not and could not have been contemplated by the framers (like Gay marriage). Respect for the courts is essential to the rule of law and to the peaceful conduct of our democracy. Disrespect for courts and the rule of law encourages the use of other methods to effect change (like standing at the schoolhouse door, bombing abortion clinics or issuing marriage licenses in violation of Oregon law) – to everyone’s detriment.

Our democratic values insist that the majority have its way on most issues – and the rule of law supports this. The rule of law, however also acts as a brake on the majority – particularly on the fundamentals. The legislature is given the power to change the rules out of respect for the majority. The legislature is severely limited in its power to change the fundamentals out of respect for the individual.

While the framers in 1787 could not contemplate all possible events and issues, they did contemplate the fundamentals - including the tension between the values of majority rule and individual liberty, Charges that a court thwarts democracy by an “activist” ruling (as Tom and CT are making), or attempts to limit a court’s authority as Mr. Delay seems to support, are charges and actions in support adjusting the delicate balance contemplated by the framers in support of the “tyranny” of the majority and at the expense of individual liberty.

Majorities are not continuous. They can change from day to day, from issue to issue, and from election to election. The framers recognized this and included many checks on the majority into our constitution – including the courts. Courts have no power to enforce their decisions. But if we choose to undermine them as Jackson did, as Wallace did, and as Delay seems to want to do, then we undermine a check on the legislature and the executive that is vital to our democracy. A court’s determination that gay marriage is constitutional or unconstitutional under Oregon law or US law will not prevent the majority from changing the law to overturn the result of the court’s decision. Similarly, if the people wish to overturn Roe v Wade, they can do so by amending the constitution. The people WILL rule no matter what any court says, But if we take it upon ourselves to disregard the courts, than there is nothing left in the defense of individual liberty but the sufferance of a majority of one. That to me is a frightening thought.

[Cecil Turner]

"The people WILL rule no matter what any court says, But if we take it upon ourselves to disregard the courts, than there is nothing left in the defense of individual liberty but the sufferance of a majority of one. That to me is a frightening thought."

It seems to be getting a lot more frightening to the Left as they lose elections, and their last hope for implementing a social agenda repeatedly rejected by the electorate is an activist Judiciary. And sorry, but reining in the courts' lamentable tendency to overreach is not "disregarding" them, but another in the system of checks and balances.

As to the people ruling, I heartily agree. And in this instance, despite talk of impeachment, the most likely remedy is to appoint more strict constructionists to the bench (probably after changing Senate rules to disallow filibusters of judicial nominations). And though we're likely to hear numerous charges of "court stuffing" and other (even less credible) complaints, the bottom line is that it's a political question, and will be answered through politics. And one of the reasons it's likely to be successful, IMO, is that people are tired of social engineering through judicial fiat (or looking to Europe for guidance on interpreting US law). And I suspect you'll find the result even more frightening.

[Jamie]

It's possible to offer respect without complete capitulation. I might even argue it's responsible to do so.

[TexasToast]

I agree with you Jamie – and so does Abraham Lincoln --

“We believe, as much as Judge Douglas, (perhaps more) in obedience to, and respect for the judicial department of government. We think its decisions on Constitutional questions, when fully settled, should control, not only the particular cases decided, but the general policy of the country, subject to be disturbed only by amendments of the Constitution as provided in that instrument itself. More than this would be revolution. But we think the Dred Scott decision is erroneous. We know the court that made it, has often over-ruled its own decisions, and we shall do what we can to have it to over-rule this. We offer no resistance to it.
Judicial decisions are of greater or less authority as precedents, according to circumstances. That this should be so, accords both with common sense, and the customary understanding of the legal profession.
If this important decision had been made by the unanimous concurrence of the judges, and without any apparent partisan bias, and in accordance with legal public expectation, and with the steady practice of the departments throughout our history, and had been in no part, based on assumed historical facts which are not really true; or, if wanting in some of these, it had been before the court more than once, and had there been affirmed and re-affirmed through a course of years, it then might be, perhaps would be, factious, nay, even revolutionary, to not acquiesce in it as a precedent.
But when, as it is true we find it wanting in all these claims to the public confidence, it is not resistance, it is not factious, it is not even disrespectful, to treat it as not having yet quite established a settled doctrine for the country…”

There is nothing at all wrong with opposing judicial “results”. My complaint is attacking the man/(judiciary) and not the idea/(judicial opinion). Accusing the judiciary of “activism” is an ad homonym attack – and is pernicious for that reason.
As to Cecil’s argument re appointments, I would not be so foolish as to argue that judicial appointments are not “politics” – in fact, I would say they are the essence of politics. I only warn that there are other values in our constitutional system besides “majority rule”, and we ought to be mindful of them before labeling the procedures protecting a minority as “undemocratic.”

[creepy dude]

The entire Constitution is premised on the positively demonstrable proposition that the American people are savage idiots, or to borrow Publius' more delicate phrasing:"ambitious, vindictive, and rapacious" (Federalist No. 6).

More control by the "majority" is exactly what we don't need.

Repeal of the 17th amendment is the place to start. The 17th was a direct assault on the genius of the system enacted by the founders.

[Cecil Turner]

"There is nothing at all wrong with opposing judicial “results”. My complaint is attacking the man/(judiciary) and not the idea/(judicial opinion)."

Nonsense. Criticism of the Judiciary is not limited to criticism of individual cases and decisions, without examining the thought processes behind them. Moreover, "judicial activism" is an idea, and subject to the same examination that any other political proposal (as is the propriety of using foreign case law when interpreting the Constitution).

"I only warn that there are other values in our constitutional system besides “majority rule”, and we ought to be mindful of them before labeling the procedures protecting a minority as “undemocratic.”"

If you're suggesting the only protection from "tyranny of the majority" is in the courts, I suggest rereading Federalist #10, which suggests the main remedy is in federalism:

The influence of factious leaders may kindle a flame within their particular States, but will be unable to spread a general conflagration through the other States. . . . In the extent and proper structure of the Union, therefore, we behold a republican remedy for the diseases most incident to republican government.

But the question of limits of judicial power is not primarily a debate over factionalism, but of checks and balances. If you're claiming the Legislative Branch should not try to influence the Judiciary, or that the Executive should enforce clearly unconstitutional judicial decisions, I would submit that runs precisely counter to the self-correcting mechanism touted in Federalist #51:

TO WHAT expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the Constitution? The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.

The "checks and balances" concept includes near-constant tension between the Branches. The Judiciary is no more immune to that tension than the Legislature or Executive--and just as they may invalidate certain acts of the other two branches, their own rulings are subject to having the law changed by the Legsislature or not being enforced by the Executive. Respect for the rule of law does not mean the rule one part of the government over another . . . the USSC is not the law, nor are they above it. Similarly, as tension between the federal and state governments discourage factionalism, the departments also serve as checks on each other:

In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.

And history suggests that "control" includes both concern over individual decisions (e.g., Roe v. Wade) and philosophical viewpoints, and includes political actions such as appointments, impeachments, and, in extreme cases, constitutional amendments.

[TexasToast]

That's not an "attack," nor is the outcome the problem. (And judging motives of others, especially those you disagree with, is risky.)" – CT

“Now, Tom Delay (and many others) did not like the result."

Again, you're extrapolating from an assumption about others' motives--and that certainty exists only in your mind. If one assumes they had the purest possible intentions, I'm having a hard time seeing what they'd have done differently. If you can find something in their actions that supports nefarious intent, it might be convincing. Otherwise the attempt to delegitimize others' arguments falls flat (and in fact, tends to discredit your own). – CT

"I fail to see how stating the obvious fact that Mr. Delay did not like the result even addresses his motives - but I can see it is pointless to argue further about it, so I wont."

I was interpreting your argument as being that he didn't like the result (as opposed to believing the process was faulty), and therefore his attempts to change the process were illegitimate. Several others have made similar arguments (some going so far as to proffer "talking points" of dubious provenance claiming the point was partisan political advantage). At best, it's a distraction.

Nonsense. Criticism of the Judiciary is not limited to criticism of individual cases and decisions, without examining the thought processes behind them. - CT

What was that again about “judging the motives” of others? And those dubious talking points? :)

Seriously though (continued)…

[TexasToast]

“If you're suggesting the only protection from "tyranny of the majority" is in the courts …”
I’m not suggesting the courts are the “only” protection, but they are indeed an important, nay, vital, protection in a “republican” form of government as opposed to a pure democracy. It’s hard to resist the strawman, eh?

I’m also not suggesting that the courts are in any sense “above the law” or should not be “checked” by the legislature or the executive. Clearly, the legislature has the power to limit jurisdiction, to impeach, and to override most rulings by statute. However, these powers do not mean that the legislature should emasculate the judiciary for political advantage or because it would “fire up the base.” That strikes me as blatant demagoguery.

As to enforcement, I’ll take the liberty of quoting Lincoln again –

“Why this same Supreme court once decided a national bank to be constitutional; but Gen. Jackson, as President of the United States, disregarded the decision, and vetoed a bill for a re-charter, partly on constitutional ground, declaring that each public functionary must support the Constitution, ‘as he understands it .’

The president has every right to veto a bill he thinks is unconstitutional. A congressman has every right to vote against a bill he thinks is unconstitutional or to vote for a measure to overturn a judicial decision The line should be drawn however, at a refusal to enforce the law in contravention of the oath to “…preserve, protect and defend.” If everyone’s interpretation is entitled to equal weight, why do we need courts? Indeed, why do we need government?

[Cecil Turner]

"What was that again about “judging the motives” of others? And those dubious talking points? :)"

Maybe you didn't bother to read that article I linked earlier, but there's no nead for mindreading here. Justice Ginsburg is quite up-front with her reasoning, in a public statement.

"The line should be drawn however, at a refusal to enforce the law in contravention of the oath to “…preserve, protect and defend.” "

Again, this presupposes the courts to be the final arbiter of constitutionality, even in matters in which they are invested. And perhaps you ought to read the rest of the quote (from Article II) as it is instructive: "preserve, protect and defend the Constitution of the United States." In the example you cited, if we are to believe that the following finding is constutional, you would undoubtedly be correct:

The Cherokee nation, then, is a distinct community, occupying its own territory... in which the laws of Georgia have no force....

If, however, you believe that the construct of small enclaves of independent "nations" within each state is not constitutional, then the President has a duty not to enforce it. As he did (properly, IMHO).