Courts vs The People

With the controversy over Proposition 8 in California, defining marriage as a union of man and woman, we have starkly seen a battle that has been playing out for many years. In the spirit of full disclosure I would have voted with reservation for Proposition 8, but whatever your opinion is concerning same sex marriage, the role of the courts in our democracy should be of concern to you. The courts over the past century, most prominently by the Warren Supreme Court (1953-1969), have expanded their role from defending constitutional rights to the creation of rights. The battle over same sex marriage in California encapsulates this issue nicely.

Lets look at what happened in California. First in the year 2000 California voters passed a state initiative defining marriage to exist between a man and woman. One must ask, why did Californians feel it necessary to put forth an initiative in 2000? Clearly, there was some measure of concern that existing California law was insufficient to contain marriage in its traditional form, and in response citizens passed the initiative with 61% of the vote. It seems that their fears in 2000 were well founded, in May of 2008 the California Supreme Court struck down the 2000 initiative as unconstitutional. Reacting to the Supreme Court decision, Proposition 8 (a constitutional amendment) was placed on the ballot by traditional marriage activists, and in no small measure was voted for in repudiation of the California Supreme Court’s decision.

Why should we be concerned with the actions of California’s Supreme Court? If you don’t live in California you should be concerned in the sense that it is a symptom of a national problem. Traditionally, the role of the court was to defend the law of the land, and a Supreme Court’s role, whether federal or state, was to defend the supreme law of the land: the constitution of the state or nation respectively. Today many justices on our national and state Supreme Courts no longer function under this guideline. They create rights and expand freedom. Why should this worry you? More freedom and rights is a good thing right? Generally speaking yes, but that assumption fails to recognize the source of our freedoms and rights. Rights dispensed by a group can be revoked by that same group. On the other hand, rights inherent to us cannot be revoked. This is the essence of rights. Rights are divinely given, or for the irreligious, inherent in our existence. They are not granted by government.

Our founders recognized this and enshrine these in the Bill of Rights. Thus, placed in the supreme law of the land, they could not be infringed upon by a powerful central authority. The protector of these rights in our system is the Supreme Court who’s duty it is to defend the Constitution. Yet, over time this role has be abdicated by many justices. Impatient for social change and unwilling to abide the pace of democracy they impose their will by expanding the meaning of the constitution in a manner pleasing to their sensibilities. Judges have a role in our democracy as a necessary check on legislative or executive excess. One of their roles is indeed to protect minority constitutional rights, and yes they have failed in the past (for example: separate but equal). Yet, such failures are not remedied by committing the same wrong act of subjective interpretation for a more preferred cause. We must preserve the fundamental rights of all Americans and let the constitutionally inherent process of amendment create and expand the rights of this nations citizens.

All Americans have an interest in preserving the integrity of the Constitution. We must support more justices like Carol A. Corrigan, who place the law above their wishes. As she said in her dissenting opinion to overturn the 2000 initiative: “In my view, Californians should allow our gay and lesbian neighbors to call their unions marriages. But I, and this court, must acknowledge that a majority of Californians hold a different view, and have explicitly said so by their vote. This court can overrule a vote of the people only if the Constitution compels us to do so. Here, the Constitution does not. Therefore, I must dissent.”

Amen.

The Change We Need

By Caleb Van Bloem and Dan Jackson
Monday, November 10, 2008

Our political discussion has become more and more rancorous, and sadly our debate seems to revolve around who can most quickly discredit the other party, rather than address the issue at hand or the proposals of the other party. These petty indulgences were once a luxury we could afford. The Cold War had been won and the nation was at peace. Yet, now many Americans believe that the challenges we face are too big to continue down this road. We must discover again: what unites us, how do we balance our different ideologies, and how do we form a more functional and civil government?

Unity:

What makes America worth fighting for? What makes the sacrifice of those who have died in its defense worth the price? Really these questions ask the larger question: what is America?

Is America a deeply flawed great power that needs radical transformation?

Alternatively, is America a source of good; a shining city, calling those who wish to live free and achieve?

Or is the answer somewhere in between?

Whatever the answer, there is something that unites us as a nation, some form of shared principles, values, and beliefs. We are not a tribal nation fighting only for family regardless of their morality. Instead, as a nation we were forged from the fires of a principled revolution, and our founding document was formed through a passionate and honest debate over what principles would animate our nation. What are those principles that we share? What keeps us together after all this time?

The vast majority of Americans believe that we each possess inherent rights, and many of those rights are enumerated in our Bill of Rights. Some Americans believe there are more rights not contained in the Bill of Rights, but most at minimum believe in those. These rights are what bind us in a common cause; a cause to defend these rights for one another and preserve a future with these same rights for our children. We can't examine every right here, but some of these rights include: the right to debate and petition government, the right to self defense, the privacy of our homes, the right to a just criminal process, and that all our laws apply equally to all citizens.

These are some of the ideals we hold in common that we can and still unite around. Let us not lose sight of these as we engage in our political debate.

Democracy:

In an election year where “change” has been a common phrase echoing from both sides of the political spectrum; it is evident that the theme has resonated with the majority of voters. While it may have become a convenient buzzword in the final months leading up to the election, it is obvious that Americans voted for change over what they felt was the status quo. Given the inherent ambiguity of the word, especially in a political context, we are left to ponder the specifics. What is the change that America voted for?

Was the “change” that the majority of Americans embraced a radical ideological shift to the left? We submit that it was not. Instead they voted for the end of a political culture that has been rendered stagnant and ineffective by years of increasing polarization, and fiscal irresponsibility.

Compromise has become increasingly rare in this day and age when the interest on one’s party is put before effective governance. In Washington, partisan power and influence are maintained at the expense of the American people. History teaches us that this type of polarization, and the obstructive practices that accompany it, is an enemy to democracy.

Americans have grown dissatisfied with the hypocrisy of a Republican party that preaches fiscal responsibility and limited government, and when in power practices the opposite. They now hope that the Democrats have managed to change their ways after they were voted out in the 1990s. Yet, if their time in the minority and two years in congressional majority is any sign of things to come, we remain quite cautious in our optimism.

Toward Loyal Opposition:

We call upon government officials on both sides of the aisle to bring about real change by ending this destructive political culture, and to work in the spirit of compromise towards effective solutions for the major issues that now face our nation. Now in the minority, Republicans need to be the loyal opposition. Opposing on principle is the strength of our republic, but loyalty is also necessary. Loyal opposition is demonstrated by reaching back when the other side reaches out in good faith and by supporting the president when they think he’s right. We do not ask America's parties to sacrifice their ideology or the right to dissent, but rather to put their nation before their party.