Homosexual Revolution Notwithstanding Democracy

February 22, 2009

Tonight we also witnessed an Academy Award given to the writer of the screenplay Milk.  That screenwriter told of how his parents moved him away from a conservative Mormon environment where he could learn to accept “who he is”.  While there are plenty of philosophical problems associated with someone claiming “it’s who I am” (about anything), which I won’t go into, I found it interesting that he promised all the homosexuals out there that the marriage license would soon be extended to homosexual “marriages” from a federal level.  I’m guessing that the screenwriter is no lawyer, but he may suspect that the U.S. Congress is largely powerless to regulate state marriage laws (or at least it is supposed to be).  However, the federal judges, none of whom are elected, have been known to strike down state laws by declaring them unconstitutional, whether or not there is any sound reasoning or any text in the Constitution to support such a decision. 

The screenwriter reveals an interesting attitude: we just lost an election, but no matter, we’ll run to the courts to fix it.  And if we lose in the state courts, we’ll go to the federal ones.  And as soon as we get that precedential decision we’re looking for, it won’t matter what people vote for, because judges (by co-opting the constitution) trump democracy (and perhaps can trump the citizens’ attempt to amend their own constitution). 

Of course, setting aside the justice or injustice of the homosexual movement, any democratic process can produce unjust laws.  And yes, it would be nice to have all of those unjust laws overturned by some other governmental entity.  However, that other body can likewise produce unjust decisions.  So, in the end, we must recognize that someone will have the last word, and that person or group may produce unjust laws. 

Thus, the question becomes who should make that last and final decision.  As to the federal level, should it be the unelected Federal Judiciary or a democratically accountable Congress and President?  Of course, the homosexual screenwriter may place tremendous hope in Congress and the President (and that is probably a justified hope), and he may be unaware that the Congress and President are generally not supposed to dictate state laws.  Even so, as of now, it would appear that the California state courts will be the next arena for this debate, regardless of the express will of the people in the state of California.  And if those judges decide that the people of the state of California cannot amend their own state constitution to reflect their will against homosexual marriage, when can we stop calling ourselves a democracy?

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6 Responses to “Homosexual Revolution Notwithstanding Democracy”

  1. Jeff Says:

    There is a part of me that wishes to be more politically involved because of perceived injustices in our society. naturallawyer (or others), any good suggestions on how to become ‘more than just a voter?’ … since voting apparently just isn’t good enough.

    On a lighter note, we in Montana have much more (efficient?) ways of dealing with governmental corruption: “guns” and “militias.” 🙂

  2. thenaturallawyer Says:

    You could always start a blog and try to convince others to vote the way they should… 🙂
    I think that it will take nothing short of a cultural (not governmental) revolution to overthrow the power of the courts. By that I mean that it would take a serious mandate from the people that their elected representatives stand up to the courts before any politician would dare do so. David Barton has argued that we should start impeaching unruly judges.
    Even so, until then, each of us can vote and spread the message while there’s still something left of the First Amendment.

  3. Phil Says:

    Be warned, that I’m about to say two things that might seem contradictory but reflect the way our system was set up.

    First, the court system always has the last word. That’s what they were designed to do. If a federal court says “this is the way it is” that’s the way it is. For example, when the Supreme Court said desegregate those schools, it had the last word.

    The federal court system headlined by the Supreme Court was always intended to have the last word. The fact that they are unelected allow them to place a check on the potentialities of the people democratically violating the constitution. IE the civil rights movement.

    If you’re opposed with the courts having the last word, then you need to forget about proposition 8 and start writing blog entries explaining why Marbury vs Madison and Judicial Review are incorrect readings of the constitution.

    Second, even to the extend that the courts have “final” say, the legislative branch can always rewrite the bill in order to make it legal. This has happened several times throughout history like in the 1988 Westfall v. Irwin case. IN FACT, it is not at all unusual for the courts to strike down a law but suggest that the legislative branch rewrite the law in order to make it constitutional.

    Last, on the federal level congress always has the ability to use court stripping, a nuclear option which strips the courts of their ability to hear certain types of cases. The most famous example being Congress ruling that SCOTUS couldn’t hear anymore Reconstruction era cases after the Civil War.

  4. thenaturallawyer Says:

    This post of yours deserves a lot more attention than I have time to give it because it’s late. However, I’ll go through shotgun-style and try to address the issues in more detail later, or perhaps in future posts, since some of your statements raise important points worth posting on.

    First, the court system always has the last word. That’s what they were designed to do.

    That is a false statement. I’ll have to get you the quote later, but the Federalist Papers make it abundantly clear that the judiciary is not meant to be the strongest branch of government or to have a policy-making function.

    If a federal court says “this is the way it is” that’s the way it is. For example, when the Supreme Court said desegregate those schools, it had the last word.

    Doesn’t this mean that the Supreme Court cannot make a wrong decision? If whatever the Supreme Court declares is the law is the law, does that mean that the Supreme Court can declare that the United States President need not be an American citizen, notwithstanding the text of the constitution?

    The federal court system headlined by the Supreme Court was always intended to have the last word. The fact that they are unelected allow them to place a check on the potentialities of the people democratically violating the constitution. IE the civil rights movement.

    Again, that is not the intended function of the Supreme Court. Judges are unelected because they are not supposed to make political decisions. Their role is to state what the law is, not what it should be. (See Federalist Papers.)

    If you’re opposed with the courts having the last word, then you need to forget about proposition 8 and start writing blog entries explaining why Marbury vs Madison and Judicial Review are incorrect readings of the constitution.

    Marbury v. Madison does not stand for the proposition that the courts can make policy and automatically have the last word. That is why Presidents have, in the past, declared their own ability to interpret the constitution when the court exceeds its authority. I believe Lincoln did this following Dred Scot, when the Supreme Court declared that black people are not United States citizens. If it weren’t so late, and if you hadn’t given me so many good arguments to consider, I’d spend more time developing this argument.

    Second, even to the extend that the courts have “final” say, the legislative branch can always rewrite the bill in order to make it legal. This has happened several times throughout history like in the 1988 Westfall v. Irwin case. IN FACT, it is not at all unusual for the courts to strike down a law but suggest that the legislative branch rewrite the law in order to make it constitutional.

    Advisory opinions from the Supreme Court are unlawful, as the Supreme Court has made clear itself in case precedent. But besides that, this is more bone-tossing. The court lets Congress re-write bills to the extent that the Supreme Court deems the legislation to be legitimate. While I may not have a problem with this per se, it is a problem when the court exceeds its constitutional authority to do so by misinterpreting the constitution.

    I think the appropriate branch to address the court’s oversteps is not Congress, but the executive branch. The President can tell the Court, “get your own guns and enforce your own unconstitutional decisions. I took an oath to the constitution, not to the courts, so when those two are inconsistent, I must follow the constitution.” Personally, I think that will one day happen. And if you thought Bush v. Gore was a constitutional crisis…

    Last, on the federal level congress always has the ability to use court stripping, a nuclear option which strips the courts of their ability to hear certain types of cases. The most famous example being Congress ruling that SCOTUS couldn’t hear anymore Reconstruction era cases after the Civil War.

    The “nuclear” option is an empty threat. As I learned in law school, the courts could, and probably would, just declare the Congress’ actions unconstitutional. And what keeps the court from doing so if it can declare itself infallible in all things constitutional?

    In the end, you have to decide whether the court can declare its own authority (which I think is a mis-reading of Marbury, but it apparently is how you read it). Does it not strike you as odd to accept such an assertion–from anyone? If I declare to you that I am the supreme lawmaker in the United States and you must ignore the Supreme Court and listen to me instead, presumably you’d question my authority to make such a statement and make me provide a basis other than “because I said so”. To the extent that the Court states “because it’s in the constitution” as a justification for its assertion, then the Court’s power must be limited by the constitution’s grant of authority, right? And therefore the Court cannot usurp the constitution and declare whatever it want to be the constitutional meaning.

  5. Phil Says:

    Reread what I actually wrote and then try to respond again.

    You were probably just busy, but the entirety of your response is to things I never said.

  6. thenaturallawyer Says:

    That’s a pretty funny response. I respond point by point to quotes from your post and you merely state, “reread and try again.” You’ll pardon me if I don’t mistake that for a responsive argument…

    If you misunderstand me, I am happy to clarify. If you don’t want to return the favor, no problem, but that has no impact on the weight of my reply. Care to clarify whatever it is that I misunderstood so we can have a genuine discussion?


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