March 06, 2009
Dred Scott & the CA Supreme Court
Posted by: Andoni
I watched online the entire oral arguments at the CA Supreme Court yesterday challenging the legitimacy of Prop 8. I must say, I was quite disheartened when it was all over. Our side's argument that Prop 8 was a constitutional revision (major change requiring a higher bar) versus an amendment (simple change requiring a lower bar) pretty much fell on deaf ears.
Chief Justice Ronald George pretty much summed it up when he suggested that maybe the real problem is that the California constitution is just too easy to change by amendment, having been done over 500 times, and that maybe it should be made more difficult to amend. My first thought was well, yes, but please don't change the rules now that we will probably have to go back to the people to amend again in order to get Prop 8 out of the constitution. Wouldn't that be the irony of ironies... they change the rules to make amendments more difficult to pass after we've been screwed, just in time for when we have to get something passed to undo the damage. Wouldn't that be great?
There was a line of reasoning during the case that didn't pass my logic test. The California constitution refers to the inalienable rights of all Californians to life, liberty, etc. But the justices also kept referring to the inalienable right of the people to change the constitution. The justices chose to think that the inalienable right of the people collectively to change the constitution (a simple majority) outweighed any inalienable rights of any individual or minority. This translates into the inalienable rights of the majority is more powerful than the inalienable rights of the minority. That means the majority rules the minority, regardless of inalienable rights.
Conclusion: there are no inalienable rights -- it's simply a matter of majority rules.
I can't imagine that is what the framers of the CA constitution had in mind when they wrote the constitution and described inalienable rights. If the that is what the CA Supreme Court decides, then the document is internally inconsistent.
Another point that got me angry was that the justices seemed to admit that it was indeed unfair for a simple majority to take rights away from a minority. They also said it would be unfair to those already married to have their marriages nullified. Both things unfair. But they chose reasoning that seemed to indicate that they would allow the first unfairness to stand, and somehow were finding reasons that the second unfairness should not stand.
My take-away is that the court would rule against the Prop 8 challengers (our side) and say Prop 8 is valid, but allow those 18,000 marriages to stand. Maybe they believe that by doing this they will seem more moderate, coming down on both sides of the issue giving the Prop 8 supporters a win, while also giving us a little something.
From my personal perspective (not married in CA or living in CA), I would rather that if we are defeated on Prop 8 the question, that they also rule to un-do all those marriages already performed. My reasoning is that this will demonstrate to the public more fully the damage they have wrought by voting for Prop 8 and it will demonstrate the real agenda of the religious right. If those 18,000 marriages are undone, I believe, we have a better chance of winning in 2010 when we try to overturn Prop 8. It will be crystal clear to the voters in the middle how damaging Prop 8 really was.
Finally, I was dismayed by the totally slavish way the justices felt their hands were tied by precedent (in the amendment versus revision question) even as they were simultaneously saying how they could see that it was unfair that a simple majority could remove a fundamental right from a minority. And they were simultaneously acknowledging that this was a totally unique case- nothing like this had ever come before them. They were certainly in new territory.
Well, news flash to the justices. When you are in totally uncharted territory you cannot go to the field manual they gave you in school. Old maps, precedents, etc don't apply! They won't work. Trying to apply old charts, rules, doctrines, to a totally new situation is what chained to the past people like Herbert Hoover do. In truly uncharted territory, smart people and true leaders find new ways to do the right thing and get to the right solution, even if it's not in the books. Think Abraham Lincoln during the Civil War or FDR during the Great Depression and World War II.
I'm afraid that the CA Supreme Court is going to act more like bureaucratic lemmings using inapplicable precedents to tackle a never before seen situation, rather than incorporating logic, wisdom, and creativity.
In one of the most monumental cases ever before the CA Supreme Court, I'm afraid these justices are going to think like the justices who produced the Dred Scott decision, rather than the Brown v the Board of Education decision. The Dred Scott justices based their decision on the old manual; it was tethered to precedent and the past. The justices in Brown used logic, wisdom, and new thinking to move the people to a better place.
I certainly hope I am wrong and will gladly admit it if I am.
TrackBack URL for this entry:
The comments to this entry are closed.