On Judicial Review, and Rule by the People

May 15, 2008 was a momentous day. Four of seven California Supreme Court justices voted to overturn the results of Proposition 22, a law passed by a 61% vote in California in November 2000. The contents of the law were strikingly simple:

Only marriage between a man and a woman is valid and recognized in California.

The result of this judicial decision was to open the floodgates of same-sex marriages. Some were cheering that day, but many were silently lamenting what had transpired. I was one of those who lamented the decision, but what is important is the framework for why I have come to that conclusion. The background and facts surrounding the issue are paramount for any individual being able to come to an informed (instead of emotionally-charged, and thus potentially erroneous) conclusion.

This post will be somewhat long, but I believe it will be helpful in understanding the discussion on the current thrust behind Proposition 8 that is currently before California for a vote in November.

Judicial Review

The concept and application of judicial review are nearly as old as the United States itself. It was shortly after the formation of the US under the Constitution that the US Supreme Court established the precedent of being able to review laws for their constitutionality, as arguably envisioned in Article III and Article VI of the US Constitution (it was Marbury v. Madison, I believe, that was the case to have that power established). It was never explicitly stated in the Constitution that the judicial had the power to review laws for their constitutionality, but it is commonly held that the 'judicial power' mentioned in the Constitution certainly included this concept.

This rather necessary function of the judicial branch has helped to curb the creation and implementation of onerous laws for two centuries. When the power is applied with care, it is a powerful and useful check against congress and immoral applications of power via the laws of the land. However, judicial review can also be used to destroy laws that are necessary and good, and the onus is on the justices first to do what is right, and barring that, the people to pass (or pressure their legislators to pass) amendments to their constitutions to reign in inappropriate decisions by judges.

Throughout this discussion, note that the California Constitution and its judicial are set up to be nearly identical to the federal level, so what applies to the federal level applies to the state level (and this is true of just about all of the states).

There are essentially two methods in which laws are interpreted for their constitutionality. (For more information on the following discussion, please see

From Constitutional Interpretation to Judicial Activism: The Transformation of Judicial Review in America

by Christopher Wolfe, Ph.D.)

Traditional Interpretation

The first is a traditional view, where they take the literal words of the constitution and decide whether a law or parts of a law jive with that or not. This method does not presume much about what the founding fathers meant, and takes what they wrote at face value.

Within this are two variations on deciding whether a law fits within the constitutional framework. The first is a narrow view, in that if the constitution doesn't specifically mention that a type of law or concept is allowed, then the law is not constitutional. The other, a more broad view, is that if the constitution doesn't forbid it, then the clause about delegating to the people any power not mentioned in it means that the representatives of the people (e.g. the legislative branch) can pass laws to govern those issues.

The narrow-traditional view is somewhat untenable; it's very difficult to get any laws passed, even useful and necessary laws, under that interpretation. Suffice it to say that, pre-20th century, the traditional-broad view generally prevailed among judges.

Modern Interpretation

The modern view essentially only uses the wording of the Constitution to boil it down into vague concepts and principles. A judge espousing this view quite literally attempts to infer what the principles are, and then filters a law relative to what he or she thinks would jive with those principles.

While it appears at the outset that this might be a useful way to apply the principles of the Constitution to modern, changing times, it is readily apparent that it could create too much latitude for judges to 'decide' what they think constitutional principles are, and then affirm or strike down a law based upon their own agenda. Activist judges can (and do) find refuge in the modern view, under a potentially fake cloak of constitutionality.

What is perhaps the most interesting aspect of the modern view is a bit of a paradox: if the language and scope of the Constitution is not up to snuff to deal with modern problems, then the logical answer is not to detach from its language, but to instead create a newer, modern constitution. But, you would be hard pressed indeed to find a judge that would prescribe to the modern interpretation and would advocate a new constitution at the same time. This is perhaps the fatal flaw of the modern interpretation: either the Constitution is good enough for today, or it is not. You can't have it both ways, or else you are destined to end up with abusive interpretations of law as we detach from the Constitution and, in effect, have no constitution at all.

Incidentally, traction has gained in the last few years among some justices of the US Supreme Court for turning back to the traditional view, and for some circuits it is becoming more inappropriate to push any limits with a modern view. It is my opinion that this is a healthy and positive trend, one that I hope continues to gain favor in the judicial.

Application to the May 15 Decision

The In re MARRIAGE CASES decision takes a devious track with a twist through the various views to arrive at their conclusion. Indeed the dissenting opinions of the three other justices are quite blistering on this subject.

Essentially, the main thrust of the four justices that struck down the law was that there is no provision of the California Constitution to allow laws to codify intolerance or prejudice against any group as pertains to marriage. This takes a seeming combination of both the narrow-traditional view, and the modern view of interpretation of constitutionality. It takes the narrow-traditional view because the California Constitution does not state that one group can be favored over another (although it doesn't state the opposite, either); and, it takes the modern view because they infer that the California Constitution must have intended an elimination of discrimination or favoritism.

Note that, while the narrow-traditional aspect of their decision doesn't make very much sense, the modern interpretational aspect appears to be a moral and common-sense analysis of the Constitution. There are two problems with it, however:

1. It is dangerous to use the modern interpretation, due to the likelihood of exploitation. In fact, there is plenty of suspicion going around that this was politically motivated, e.g. there are ulterior motives. If that is the case, this handily demonstrates why the modern interpretation is dangerous.
   
2. It hinges on what they believe 'discrimination,' 'favoritism,' and/or 'tolerance' mean, and it is not necessarily true that they used appropriate definitions.

Rule by the People

In the wake of the May 15 decision, an already-forming movement for an amendment to the California Constitution to restrict marriage to its traditional definition gained headway. Once it had the necessary signatures verified by the counties, it became known as Proposition 8, to be voted upon in November 2008.

How to Override the Supreme Court

Interestingly, Proposition 8 contained the exact same language as Proposition 22, except was submitted as a constitutional amendment. Once again, here is the exact language:

Only marriage between a man and a woman is valid and recognized in California.

Retaining the same language was done for a very good reason: to send a clear message to the California Supreme Court that the people of the State of California do not take lightly the implications of what the Court did.

Let me explain. In a mostly representative republic such as the US, laws passed by legislatures deserve to have scrutiny by the courts to protect the people from tyrannical and inappropriate laws, through judicial review. However, I do not believe that any law passed by referendum by the people (such as was the case in Proposition 22) should be subject to the same review. This is not to say that judicial review should be forbidden for a law passed by referendum, but it should be held to a bar that is much more strict before the judicial can strike down such a law.

The terms under which the May 15 decision was made did not constitute a clear-cut consensus, nor does it seem to have adequate explanation with clear language in the California Constitution; as such, it is entirely reasonable to say that the justices who voted to overturn the law stepped out of bounds on a moral issue that was already decided by the people. It is not far-fetched or unprecedented to claim the judicial should have left this issue alone, and let the law stand.

However, reality is reality, and the 4-3 decision left the law stricken from the books. In that situation, there is only one legal recourse for the people: adopt an amendment to the constitution to restore the language, so that there is no way for a judge to skirt around it. They would need to stick it to the judges the only way the people can, and send a clear message that activist judges cannot override the people they are supposed to ultimately serve. Hence, Proposition 8 was born.

I will spend some time explaining the basis for Proposition 8 itself (the marriage issue), as well as the topics tolerance and discrimination as used by both sides of the debate. They deserve a full discussion, and can be treated independently of the In re MARRIAGE CASES decision.