On Proposition 8 – Constitutional Principles be Damned

If this CNN article is correct, California Supreme Court is going to review, and likely overrule, Proposition 8 which amended the state constitution to ban same sex marriage.

As a social conservative, where I stand on this issue is hardly clouded in secrecy.  But the degree to which what the California Supreme Court is going to do–and I know it will because the Massachusetts Supreme Court did it with the death penalty–troubles me goes beyond my political ideology.  It offends my notion of rule of law, judicial restraint and constitutional republic.  What the court will do should offend conservatives and liberals alike.

For non-lawyers out there, let me explain how these same sex marriages decisions are reasoned.  As you are no doubt aware, America has a federal form of government.  The United States Constitution is the Supreme Law of the Land.  Whatever contradicts it in the state constitution is unconstitutional.  That doesn’t mean, though, that the states cannot expand on the rights contained in the federal Constitution.

So when a state supreme court declares a right of a civil union or same sex marriage in that state, the right is strictly based on the state constitution.  It has to be, because the United States Supreme Court has never found a right to same sex marriage in the United States Constitution.  Thus, in Massachusetts, the Supreme Court declared that the state constitution’s equal protection clause afforded same sex couples the right to marry.  Whether I agree with this reading or not (I don’t), it’s at least grounded in the state constitution.  And because this is an interpretation of the state constitution, and because such reading does not contradict the federal constitution, the word of the Massachusetts Supreme Court is final on this matter.  It cannot be appealed to the United States Supreme Court because there is no federal question at issue.  And that’s ok.  A state affording its citizens more protection than the federal constitution is entirely consistent with our federal understanding of government.

What is not okay is for the court to ignore the state constitution and create a new right out of thin air.  What the California Supreme Court will do, and what the ACLU wants it to do, is to declare Proposition 8 to be unconstitutional on the theory it takes away a right guaranteed by the state constitution.  That lawyers can seriously argue this point is why the profession is consistently mocked.  Proposition 8 amended the state constitution to ban same sex marriage.  It therefore rejected, and explicitly does not guarantee, a right to same sex marriage.  The state’s vague equal protection clause may no longer be read to create a right which is expressly and unequivocally denied in the constitution.  Whatever “equal protection” means, it certainly doesn’t mean “same sex marriage” because the Constitution now says so.  A provision in the constitution cannot be unconstitutional under the same constitution.  Yet this logical fallacy was somehow accepted and adopted by the Supreme Court in Massachusetts.

This is the very definition of judicial activism.  The seven justices will overrule, not the people, but the constitution, the supreme law of the state.  It is equivalent to the U.S. Supreme Court saying, yes the Constitution says a person must be a natural-born citizen to become president, but we, the nine justices, think that discriminates against immigrants by denying them the fundamental right to become president, so we are going to ignore that provision.  The Constitution be damned.  There’s a “fundamental right” greater than the Constitution.

The dangers of reading rights that don’t exist–or worse, is contradicted by–the constitution cannot be easily understood.  Since the 1960s, liberals have been committing this sin, enthusiastically, aggressively and without reservation, but they forget that it was the free market conservatives in the early 20th century that fathomed a non-existent right called a “right to contract” to strike down a whole variety of labor protection laws, including, most famously, a law that limited the number of hours a baker can work.  The theory was the government cannot interfere with a person’s right to contract with his employer to work for as many hours as he wants.  There is no reference to “right to contract” in the constitution, any more than there is a “right to privacy” or a “right to same sex marriage.”  Yet such a right was adopted and protected for decades because five out of the nine justices thought it was a “fundamental right.”

The dangers of reading what the very many, but not the overwhelming majority, perceive to be a “fundamental right” into the constitution is dangerous because times change.  In the early 1900s, many Americans believed a government could not pass laws to help laborers in the work environment because it infringed on their “right to contract.”  How many people believe that now?  A “fundamental right” should not change over time, and it hasn’t.  The right to speech, assembly, and press are “fundamental” to a healthy, vibrant democracy.  America fought a civil war, two world wars, and segregation of a race to lower class citizenery but the first amendment rights were always held up as “fundamental,” even if the country as a whole failed to live up to them.  To fathom new rights that is the vogue of the generation and read them into the constitution is to diminish the notion of “fundamental rights” and devalue the constitution, the bedrock of American form of government.  The justices who do this not only think too highly of themselves, but don’t give a damn about the rule of law.

As social darwinism was the battle that divided America in the early 20th century, it is the culture divide that separates America in the early 21st century.  The way to deal with the debate over what should or should not be a right–whether it be marriage, abortion, or contract–is to resolve it in the legislature, not the courts.  Although not definitive, the fact that America appears evenly split concerning whether same sex marriage is a fundamental right suggests the right, if it is in fact a right, is at least not fundamental.  Resolve that dispute in the legislature and leave the constitution alone so our next generation may rely upon it as our prior generation did.  The people may need to be taught this lesson, but supreme court justices ought to know better.

This is not to say Proposition 8 cannot be challenged in the courts.  If the ballot initiative did not conform to the California state constitution’s procedural guidelines for a constitutional amendment, the court must strike it down.  (Incidentally, if people are unhappy with the fact that a majority of the people can change the state constitution, a legitimate point, the solution is not to ask the Supreme Court to ignore the constitution, but to change the amendment process).  If Proposition 8 violates the federal constitution, it must be struck down (which decision, by the way, would be appealable to the U.S. Supreme Court because that is a federal question).  But what the California Supreme Court cannot do is to declare Proposition 8 as violative of the state constitution’s due process or equal protection clauses by inventing a right that has no foundation except in the justice’s own person ideology.

Justice Oliver Wendell Holmes, in dissenting on the aforementioned freedom of contract case, famously wrote, “a constitution is not intended to embody a particular economic theory.”  Nor is it intended to embody a particular political ideology.


6 Responses to “On Proposition 8 – Constitutional Principles be Damned”

  1. 1 Vijay November 20, 2008 at 3:39 pm

    Alexander Hamilton may have some disagreement with your interpretation of the Constitution here.
    In Federalist 84 (http://press-pubs.uchicago.edu/founders/documents/bill_of_rightss7.html) he argued against the inclusion of the Bill of Rights, stating that if such a bill were created, he feared that this might later be interpreted as a list of the only rights that people had.

    The intention of the Bill of Rights was to reaffirm fundamental rights, never to limit them to only those innumerated. Your interpretation of the Constitution is the realization of Hamilton’s fears.

    You noted that the First Amendment rights are always held up as fundamental. However, according to your interpretatiton, if the majority of people decided that they hated, say, Mormons, and ammended the Constitution to exclude Mormons from the Freedom of Religion Clause, that would be perfectly acceptable to you and Mormons would have no redress in the courts. They would just have to cross their fingers hope people eventually changed their minds. The problem with leaving the interpretation of Fundamental Rights to the whims of the majority is that minorities groups will consistently be discriminated against.

  2. 2 Chris Schroeck November 21, 2008 at 3:29 pm


    As you may know, I am an unabashed social liberal, but a fiscal conservative. Frankly, my level of liberal-ness with regard to social issues is a little bit extreme. Even I would admit that. I would prefer if not only gay marriage was legalized, but also drugs, prostitution, gambling in all states, and possibly polygamy.

    (As a side note, the legal implications of marriage in this country are just staggering. In most states you can actually get married under the age of 18 with a parent’s permission, and you can also get married in a state of intoxication far beyond that necessary to enter a contract. However, a marriage is, in addition to being a sacred bond between two people, a giant contract THE TERMS OF WHICH PEOPLE ALMOST NEVER READ PRIOR TO SIGNING because it’s not spelled out. It boggles the mind.)

    In any case, I think you are simplifying the argument being made in the California challenges. The real challenge is a procedural one. As you know, most Constitutions require amendment by supermajorities or some sort of convention process. In California, this is not the case, as far as I understand. An initiative garnering 50% of the vote can amend the constitution. However, the challenge being made is that Proposition 8 constitutes a “revision” of the California Constitution rather than an “amendment”. Frankly, I think it’s probably an amendment, but if it is at least it will be easy to change back. If it’s a revision, it requires 2/3 of the legislature, which is something that it will never get in California.

    For an interesting article that cites some caselaw, see:


  3. 3 Chris Schroeck November 21, 2008 at 3:32 pm

    By the way, although i am a social liberal, I am also no fan of judicial activism. Especially since it does unequivocally cut both ways. Your example of the right to contract is one example, another is the current court’s laughable opinion regarding the 2nd amendment.

  4. 4 joesas November 21, 2008 at 9:25 pm


    I believe the second amendment is another good example. If you want to rip on the conservative court, I also suggest its interpretation of the 11th amendment.

    What I find truly offensive in the case of California (and Mass with the death penalty) is the constitution was changed, yet the court poo pooed it like it didn’t matter. How in god’s name am I supposed to take the court seriously next time it quotes the free speech provision of the state constitution in giving the Nazis the right to protest in Jewish neighborhoods?

  5. 5 joesas November 21, 2008 at 11:26 pm


    I will take the latter point first. To cut to the chase, yes, if the United States Constitution was amended to exclude Mormons from the Freedom of Religion Clause, not only do they have no recourse in the courts, they have no recourse in the legislature or the executive. The only recourse is for the Constitution to be amended again.

    You may find this extremely offensive, but it’s hardly unique in American history. The most obvious example is Prohibition, which (essentially, though not technically) banned people’s right from drinking. Or treating blacks as 3/5ths of a person.

    Where I think your argument doesn’t quite mesh with mine is with the “whims of the majority” and “majority of the people” statements. I am hardly suggesting the rule of the majority. In fact, as I suggested, I think the biggest problem with the Californian process is how easy to amend the constitution. (I recently learned you only need signatures from 8% of the population to get on the balloy and a majority approval on the ballot). The Federal Constitution is much more difficult to amend, as it should be to amend the supreme law of the land.

    The problem with your statement is it completely ignores the safeguards placed into the system because, whether rightly or wrongly, there’s a right that should be enforced. If legal principles are followed, every action in American government (even at state level) has checks and balances by another branch. President exercises the veto over the legislature, whose laws are also reviewed by the court, which also reviews conduct of the president. The court is not all mighty either. If it interprets a law and the legislature disagrees, the law is changed and the court’s interpretation is mooted. If it interprets the constitution and the people (and states) disagree, they amend the constitution. The best example of this check at work is the 11th Amendment, which overruled the Supreme Court’s decision in Chisholm v. Georgia.

    What I suspect the Supreme Court of California will do, and what you endorse them to do, is to obliterate that check on the courts by allowing it to declare the constitution unconstitutional. If constitutional amendment cannot be used to restrain the courts, what outside check is there on the court? Californian judges are appointed, subject to retention vote by the people, but courts rely heavily on precedent under the doctrine of stare decisis. It took one hundred years for the courts to overturn Plessy v. Ferguson; it took 32 to override Lochner v. New York. You cry for the tyranney of the majority, but Prohibition lasted 12 years. I find no comfort in knowing that mistakes are placed into the Constitution, but I find it utterly frightening that a court, with no other check and even with an overwhelming majority of the people, cannot be overruled because the court decalres itself to be above the constitution.

    I have no doubt you take the position you do based strictly on ideology, because you clearly will not endorse that position if the issue was right to contract, which I addressed above. If the Supreme Court declared eeryone has a right to contract; that such a right precludes the government from passing labor-protection laws; and that such a right cannot be overriden by any will of the majority, even if expressed through the amendment process, you can’t possibly take the position that you take with gay marriage. You may argue a right to contract is not a fundamental right, but that’s a matter of your personal opinion and ideology. In the early 1900s, there were those (albeit in the distinct minority) who, like you, believed a right to contract was a fundamental right. It took the New Deal to correct that silliness, even where the amendment process was available. One wonders whether the court would still be living in that asinine world had we not been hit with the Great Depression. After all, it’s only been a 100 years since the right to contract was fathomed out of thin air.

    The point that I want to get across is, the means is just as important as the end. History may very well prove Proposition 8 to have been in error (and looking at the margins, it may not take that long to reverse it). But let the correction be achieved through proper procedure. Because if you don’t, you have no leg to stand on in challenging the next right that you would wholly disagree with which got written into the constitution and made immune from any democratic process.

    Finally, a word about Hamilton. Alexander Hamilton’s argument about enumerated rights was the most powerful argument used against the establishment of Bill of Rights as a condition of passing of the federal Constitution. He lost the argument. The pro-Constitution people lost the argument and the Constitution was ratified in the states only after a promise was made that the First Congress would propose a Bill of Rights because the argument had a serious flaw: the main body of the Constitution contains variou protections against infringement of rights, such as the suspension of writ of habeas corpus and ex poste facto laws. Hamilton could not prevail in his argument because if the concern was creating a list of rights would limit people’s rights, why does the Constitution itself list them? A valid point.

    In this regard, though, I am not in complete disagreement with you or Hamilton, my favorite founding father. It may be that his argument didn’t prevail. But the Bill of Rights contains the little-used Ninth Amendment expressly stating the Bill of Rights is not to be read narrowly. To me, that leaves open for an argument for introduciton of new rights. But the court, empowered with such a right, must exercise it cautiously, or else we have a right to contract.

    Hamilton, though, doesn’t help your argument endorsing what the California Supreme Court is asked to do. They’re not asked to create a new right. They’re asked to ignore the constitution.

  6. 6 joesas November 22, 2008 at 12:15 am


    Responding to your first comment second, I was recently notified of the amendment process in Cal., and it’s as asinine as the recall process. If the question is a procedural one, as I’ve repeatedly stated, I believe it is a legitimate matter to review in the courts (some states refuse to do this; they deem challenges to the amendment process as a “political question” and refuse to touch it. That boggles the mind).

    That, though, is the level of judicial review I’m willing to tolerate on this one. If they “substantively” review Proposition 8, I have serious issues. But then, I have serious issues with “substantive due process” in general, but I think my debates with various people prove how distorted the meaning of “due process” has become to the point where procedure doesn’t matter anymore so long as “substance” is acceptable to the person arguing for that position. Talk about ends justifying the means.

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