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Wednesday, April 29, 2015

Speaking Of Judicial Review And Mob Rule

Lemieux again on anti-equality oral arguments before SCOTUS:

John J. Bursch, the lawyer charged with defending the bans, began with the rather strange argument that there was a "fundamental liberty interest" for individuals in giving their states the right to define the institution of marriage. Justice Antonin Scalia, the arch-conservative who is adamantly opposed to same-sex marriage and enjoys making homophobic jokes in court, attempted to state the point in a somewhat more defensible form, drawing a distinction between judicial decisions and popular self-government. When state courts rule same-sex marriage bans unconstitutional, Scalia asserted, "that's not the people deciding it. It's judges deciding it." At other times, Scalia described the argument of the states as "leave it to the people."

The point has a certain superficial appeal. Given how deeply entrenched the traditional definition of marriage had been — a point the conservative justices returned to again and again, citing millennia of human history — doesn't it make sense for the change in definition to come from the people themselves, rather than having unelected judges make it?
Making a distinction between "the people" (as represented by legislators) and "judges" is misleading. In the American system of government, legislative enactments, state initiatives, and constitutional amendments are subject to judicial review.

It's just not fair for a legitimate branch of government established to protect civil rights to not let a majority take rights away.  Amirite, California?


April 29, 2015 in Constitution, Schmonstitution | Permalink


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