"Unelected judges" as straw men
Opponents of gay marriage (including one of our friends and frequent commenters here at GPRR) often criticize "unelected judges" like Polk County's Robert Hanson and the justices of the California Supreme Court for overriding the will of the people. While public opinion seems to be changing in California (and presumably elsewhere), calls to "let the voters decide" don't make sense, for several reasons.
First, many judges are, in fact, elected, or at least retained in office by the public. That's the case in California and here in Iowa. Judge Hanson will be up for retention in 2010, and some activists are hoping to unseat him.
Second, and more importantly, the maligned and feared "activist judge" legislating from the bench is a straw man. Judges do it all the time, because they must and because they should. They must because legislatures cannot spell out every application of every law, and they should because sometimes legislatures do nutty, unconstitutional things. And sometimes, voters approve of those nutty, unconstitutional things (does separate but equal ring any bells?).
If you want to get into details, check out Scott Lemieux's piece on what Matthew Yglesias called conservatives' "fair weather originalism" in the American Prospect last year. The topic was school integration, but the argument remains the same. They adhere to the text, when the text fits their views. Or, as Lemieux stated of Justices Scalia and Thomas, "a commitment to grand legal theory rarely constrains a judge when a strongly held political commitment is involved."
3 comments:
In the spirit of friendly debate I must take issue with your assertion that it is I who is using the "strawman" argument when it comes to gay marriage. I did nothing of the sort and it is actually you who is using that fallacy (*A straw man argument is an informal fallacy based on misrepresentation of an opponent's position. To "set up a straw man" or "set up a straw man argument" is to describe a position that superficially resembles an opponent's actual view but is easier to refute, then attribute that position to the opponent).
I believe your recent blog on the "tide turning" was to begin to refute an argument that the public is against gay marriage restrictions by citing a poll. I merely added that my long held belief in judicial activism and judicial legislating would not be an issue BECAUSE the electorate would begin to pass laws redefining marriage. In other words, I am agreeing with your sentiment and merely saying that judges should not be deciding an issue that the people's body should decide and have decided since our country's inception. You then brought Plessy v. Ferguson and the separate but equal doctrine to associate my belief in judicial restraint as a sanction for every nut who hates homosexuals. Not so.
I believe an active judiciary makes a lazy electorate. That's it.
Thanks so much for the clarification, ole-cubed!
New York's recognition of gay marriages from elsewhere adds another wrinkle to this, doesn't it?
Yes it does. The Full Faith & Credit Clause appears to demand it in the future for every state. That will be the next debate. Unfortunately, it won't be happening in the state Senate or State House, but to the almighty robed class.
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