UGLY

I heard an argument on the radio the other day and want to present it to you.

What is more important in our society the process in which we make or change our constitutional laws or does the outcome trump the process?

I n light of the California supreme courts decision this week to allow gay marriage they have essentially created law (the job of the legislature) instead of doing what they are supposed to do and interpret the law as it is written. In other cases through out our history the courts have done similar things Brown v. Board of Education and Roe v Wade. While the outcomes of these cases may have given us the desired and correct outcome (depending on your view of abortion) was it worth it? Was it worth the court over stepping there rights and creating laws in what they view as justice. In the Brown case many judges who would be on the supreme court later have argued that the constitutionality of the law being fought was never challenged by the law but rather by science that said kids felt bad and couldn't learn in a segregated environment. The judges interpreted the science and made a judgement that was not based on the constitution.

Like I said the outcomes may have been desirable but we have opened ourselves up to judicial activism whether it would be conservative or liberal. In an essence we have allowed this action to weaken our constitution and give the judicial more power than they should have. If we want our laws changed we need to use the process and vote on constitutional amendments like the law says.

UGLY

One other item I would present is that we would have gotten to desegregation (which segregation is not unconstitutional) of the schools in time just as I believe that we will see the legalization of gay marriage through the amendment process. It might not be as timely as some would like but it will happen.

skipster

Note that the court in California overurned the state's referendum-decided gay marriage ban. A few people (the court judges) overturned the will of the people (the referendum). The media only shows happy gay people getting married, but they don't talk about how the desires of a few trumped the wishes of the majority of the peolpe of California, as shown by vote. I think this may be the core issue, here, not gay marriage.

matclone

As I explained to you earlier this week, the state's constitution is law and the court's decision was about what the constitution says. So whoever on the radio, or elsewhere is making the argument that the court made a judgment not based on the constitution is totally full of it. What they really mean is they disagree with the court's judgment and (probably) they want you to be mad about it so they'll falsify, exaggerate, or do whatever toward that end.

matclone

Ah, there's a real argument. One of the enduring questions throughout our nation's history as been whether one branch or another has acquired too much power (vis a vis the others) or misused their power.

I personally think we've done a good job overall of balancing the powers.

Here's a related question: is there value in an independent judiciary?

Comment: the judiciary is the only branch of gov't that isn't directly elected (although some states do have elections). In today's political environment, this means it's the only branch that doesn't have millions of dollars backing its
players and promoting its policies. It also seems that they are an easy target because of this.

matclone

I saw in the news today that Mr. Zulu from Star Trek is getting married as a result of the court's decision.

UGLY

Clone the question is, is the outcome of court decisions based on their interpretation of a constitution or law, more important that going through the process that was set for us by the founding fathers and authors of the constitution.

ctc

So whoever on the radio, or elsewhere is making the argument that the court made a judgment not based on the constitution is totally full of it. - matclone

Ah gosh golly, wez here consiratives are jut plain dum mineless sheep. Its them thar radio guys tat cauz all them thar problems.

sgallan

Clone the question is, is the outcome of court decisions based on their interpretation of a constitution or law, more important that going through the process that was set for us by the founding fathers and authors of the constitution.

That doesn't fit for the California decision because they were interpeting the California Constitution. As far as the question in general, do you know your history regarding the Dred Scott decision. A case could be made that the Supreme Court made the correct decision based on original intent, which in this case codified the institution of slavery.

By contrast, in the sixities decisions were made that basically led to the end of legal racial discrimination. Should those decisions have been made? Or should racial prejudice - which clearly had a majority of votes in the South - been allowed to remain the rule of law?

__________________
I am 47, bald, ugly, and don't own a single cool thing. Kids like me though.

UGLY

That doesn't fit for the California decision because they were interpreting the California Constitution. As far as the question in general, do you know your history regarding the Dread Scott decision. A case could be made that the Supreme Court made the correct decision based on original intent, which in this case codified the institution of slavery.

Scott the Dread Scott decision was made before the introduction of the 14th amendment so I would argue the process worked after that decision was handed down. I don't think the Judges were wrong in their interpretation of original intent because slavery was not dealt with in the constitution and the 5th amendment guaranteed that no one could be deprived of life, liberty, or PROPERTY and black slaves were considered property who belonged to the slave owners.

By contrast, in the sixties decisions were made that basically led to the end of legal racial discrimination. Should those decisions have been made? Or should racial prejudice - which clearly had a majority of votes in the South - been allowed to remain the rule of law?

I agree with you that the decisions put an end to segregation and racial discrimination, but don't you think that we would have come to those outcomes without judicial activism and using the amendment process. I say that we would have and thus saved the integrity of our constitution and balance of power between the three branches of Gov. Just because we want a desired outcome doesn't mean we weaken our ability to enforce our laws and give any part of gov. more power than they are awarded by the constitution.