On judges and “the will of the People”

August 5, 2010

Among the various reactions to Judge’s Vaughn Walker’s decision in Perry v. Schwarzenegger to overturn California’s Proposition 8 and allow same-sex marriage here, I noticed a disturbing theme among commenters at blogs and on Twitter: the idea that the judge had no right to overturn a state constitutional amendment that directly reflected the will of the people.

To which I say, “hogwash.”  Not talking

Don’t get me wrong: I’m a staunch believer in judicial restraint. Judges should interpret the law, not make it. They, as unelected officials, should grant great deference to the elected legislatures, which (the current Congress excepted) represent the people’s will. And this is especially true when the People act directly as a legislature, as in the case of ballot initiatives.

But, conservatives who say the judge had no right to do what he did are missing a very important point: ours is a constitutional republic under the rule of law, not a majoritarian direct democracy. Our constitution was set up, in part, to protect the rights of political minorities from the passions and whims of a majority, to prevent a majoritarian tyranny. Under our system, even the People have to obey the restraints on power put in place by the Constitution. They can change the Constitution if they like, but they are not free to ignore it. If a state were to pass a bill prohibiting Asian immigrants from owning property and forcing them to sell what they did own, a federal court would rightly strike this down* as violating the Bill of Rights even if it were an amendment to the state’s constitution enacted by popular referendum.

To turn back to Judge Walker’s decision in Perry, I make no claims as to whether it was correct. (For interesting criticism, see Ed Whelan and Dale Carpenter) But, if the judge honestly believed Proposition 8 violated homosexuals’ constitutional rights, then he had not only the right to rule as he did, but also a positive duty to do so. To say otherwise is to deny wholesale the principle of judicial review, a cornerstone of our system since 1803.

So, Judge Walker may be wrong on the law and his decision subject to reversal, and he may become a poster child for judicial imperialism, but those are questions separate from whether he has the authority.

Babies. Bathwater. Let’s remember the difference.

*(Sadly, in the real case of California’s Alien Land Law of 1913, the court took way too long to finally overturn it.)