A quarterly magazine of urban affairs, published by the Manhattan Institute, edited by Brian C. Anderson.
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Disabling Democracy « Back to Story
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Do government officials not take an oath to defend the laws and constitution of the state? If they are not willing to do that, then they should resign from office.
Perhaps an initiative to say if they don't defend the laws, then they are to be removed from office, and will be ineligible for any office in the future?
Cindy Burrell is quite right: the obligation of any attorney is to zealously represent their client. The California Attorney General represents the state, not Governor Brown's policy preferences; and must ZEALOUSLY enforce and defend the state constitution. It is a grievous breach of professional ethics not to do so, warranting disbarment.
Along this line, Judge Walker is a homosexual, with a "partner"; they stand to gain from his decision. When there is even a APPEARANCE OF PROPRIETY this way--a risk of self-interest--it is mandatory for a judge to recuse himself. He should be removed from the Bench for this reason, his tainted ruling reconsidered on that basis.
As for this Ned Flaherty's repeated attacks on the challengers as "amateurs", that's pure ad hominem. Plaintiffs ARE amateurs unless they're perpetrated fraud! Their attorneys were seasoned professional attorneys. BTW, this Ned Flaherty fails to identify himself: He is indeed a professional, a professional lobbyist for national LGBT organization Marriage Equality USA.
I posted before I read the other comments.
I appreciate Ned's comments on the distinction between "enforce" and "defend," and his comments about standing before the Supreme Court. I was mistaken for conflating "defense" with enforcement. I should have said "defend," not "enforce."
However, I take issue with his mere assertion that the CA AG could not defend the "indefensible." How was it so? It would not have been invalid for the AG to at least say that the CA government is a republican form of government, where the people grant it its powers. The popular initiative amended the state's constitution, thereby asserting what powers they wanted it to exercise, ie. to restrict grants of marriage to heterosexual partnerships. They could have further asserted that the grant of a marriage license or certificate in the law is a privilege granted by the state, not a right held by the people, and there are certain legal benefits which apply to that privilege, and outside of people's rights, the state has discretion on what privileges it grants. If there were technicalities in the law which conflicted with the federal constitution, they could have acknowledged those weaknesses.
In itself it was not "indefensible." The AG simply didn't *want* to make that argument before the Court. In principle, there was a harmed party in the federal case, and it was the electorate. The State of CA did not defend a law that the voters had tasked it with carrying out, because again, it did not *want* to.
I concede that I think the SC was right to not give the defendants of Prop. 8 standing, because the case was really of the nature of "the people vs. the State of California," not "this group of californians vs. that group of californians." Since the state demurred, the SC didn't see itself in a position to make a decision about the matter, but to only rule on the constitutionality of the district and appellate courts' decisions. If a similar case had been brought in a different state, and a federal court had ruled in favor of such a law, and that state were to defend the law, then the SC might have taken it up, though not hearing from the CA defenders of the law, but from the other state's, and possibly taking the district court's decision from what was heard in the CA case into consideration. If that were the case, we might have seen a different outcome, though my understanding is Justice Kennedy is partial to gay rights, so he might have been the swing vote that ruled against a measure restricting marriage to heterosexual couples anyway.
California's liberals have been looking for a way to thwart the initiative process for a while, because conservatives have finally figured out it's a useful tool in fighting the Left. It's ironic, since the initiative/referendum process was invented by early 20th century progressives to create a populist platform for changing government policy. If only conservative governments back then had figured out what today's progressives have, that as long as you don't enforce the law created by initiative, they could have their way. Of course, back then they might've gotten in trouble from even their own base if they did that. They had respect for the law. Perhaps today's liberals are too busy celebrating their victory in gay marriage to notice that anarchy against the voice of the electorate has been validated.
Cindy Burrell is mistaken, on 5 counts.
Firstly, attorneys general are not obligated to defend indefensible statutes. They are obligated to enforce those statutes while the constitutionality is decided in the courts. That’s exactly what occurred: the California government enforced Proposition 8, while three federal courts decided whether it was constitutional.
Secondly, Burrell misunderstands the three federal rulings from the Supreme Court, Appeals Court, and trial court. The trial court ruled Proposition 8 unconstitutional, the Appeals court upheld that ruling, and the Supreme Court vacated the Appeals court ruling while upholding the trial court decision.
Thirdly, “defend the people’s will” is a meaningless notion used only by amateurs who mistakenly think that (a) defending and enforcing are the same thing (they’re not), and (b) voters can do whatever they wish, even when it’s unconstitutional (they cannot). The executive branches of government are obligated to enforce all statutes, but are obligated to defend only those statutes that can be defended.
Fourth, the reason that the fakers who butted in and tried to pose as defendants ended up having no standing is that the U.S. Constitution requires that every federal lawsuit appellant must have harm, and these appellants had none. They had a year to prepare for trial, and 2 weeks at trial, but still never produced a single shred of evidence or testimony showing any harm ever done to anyone by the marriage of a same-gender couple. Since they had no harm, they had no standing.
Fifth, no, it’s not true that just any old citizen has an automatic right to appear as a defendant in any case, anywhere, any time. Only the actual parties to a true dispute can participate. The Proposition 8 authors had no harm, they were not parties to the dispute between the plaintiffs and the state of California, and they had no standing to appeal from the trial court or from the appeals court.
Mr. Flaherty is incorrect. The role of the Attorney General is not to make a determination on his or her own as to whether a constitutional amendment approved by the people is constitutional, but rather it is his or her role to defend the will of the people before the court, and allow the courts as assess and determine constitutionality. In this case, the court did not rule Prop. 8 unconstitutional, only that those defending the passage of the constitutional amendment did not have the "standing" to do so. If the government attorneys refuse to defend the people's will, then shouldn't someone have the right to?
I have heard several conservatives privately thank God no one defended Prop 8 in court. They could see Kennedy obliterating it and creating a right to same sex marriage nationwide. It might have played out best as it did for everyone.
What do you expect - this is what Democrats do. A law gets enacted or a court decision comes out that they don't like? Easy - don't enforce the law or go to court and appeal and appeal and let the judges they appoint take care of it.
The Democrats pay no price since they control the media. These people are not clowning around or pussy footing any more - it is their way or the highway. We're now committed to the highway - the only way to deal with these people is to just leave - let them create their perfect society the ultimate end of which will look something like North Korea. We (my family and I) want no part of it. We will vote with our feet.
In short I've given up on the country - we have been done in by people of evil will and our own complacency. The very people we voted for have decided to abandon the principles we thought we all believed in or never had any intention of defending those principles. We are now outnumbered by people who are committed to something we want no part of. We were made soft by prosperity, and that did us in.
This initiative process is a farce. When the people of Ca voted to deny welfare to illegal immigrants, the courts overruled that. The bottom line is that when politicians do not like the way Californians voted, they take it to the courts to overrule it. On the other hand, the initiative process was used to steal other peoples' money, e.g., prop 30. That was okay because the politicians like that. That was the only negative consequence of Prop 13. the initiative process was used to steal other people's money. Someone should take prop 30 to the courts and declare it unfair
Troy Senik and John Yoo made two fundamental errors in “Disabling Democracy” (2 July 2013).
Firstly, they conflated “defense” of a law with “enforcement” of a law. Defense and enforcement are quite different, as proven by the Obama administration’s clear refusal to defend the DOMA statute in court, while clearly continuing to enforce it in practice. In the case of any law that appears unconstitutional, state and federal governments are obligated to continue enforcing the statute, while at the same time refusing to defend it. There’s nothing hypocritical about doing both at the same time, because active laws have to be upheld while they proceed through the courts. And that’s what California officials did.
Secondly, these authors pretended that Proposition 8 got declared unconstitutional merely because state officials decided not to defend it. That’s incorrect. The reason the U.S. Supreme Court refused to rule on the merits of Proposition 8 is because the defendants suffered no harm from same-gender civil marriage, and thus were never eligible to defend Proposition 8 in any federal courtroom.
The Supreme Court did vacate the Ninth Circuit Court of Appeals ruling, and did let stand the federal district’s trial court ruling. But it did so only because the Proposition 8 authors who butted in to defend their initiative weren’t qualified to masquerade as defendants, and thus lacked standing to appear at all.
The Supreme Court didn’t “hobble” the democracy of popular initiatives as the authors claimed; it upheld democracy by protecting it from false claims by amateurish imposters who had no case to begin with.
With all the contortionists' reading and accusations about disenfranchisement of voters, I don't understand how this could not be construed as disenfranchising the millions who voted for it.
The initiative process in California has also made the state almost ungovernable. Weakening the initiative process isn't necessarily a bad thing.
I'm waiting for a new leader. Just so ya know. Decisions made by the Supreme Court don't change a thing. Do yourself a favor pick a side. For a friend of my enemy is my enemy.
Romans 1:12-32 (Read your version if you wish)
21 For although they knew God, they did not honor him as God or give thanks to him, but they became futile in their thinking, and their foolish hearts were darkened. 22 Claiming to be wise, they became fools, 23 and exchanged the glory of the immortal God for images resembling mortal man and birds and animals and creeping things.
24 Therefore God gave them up in the lusts of their hearts to impurity, to the dishonoring of their bodies among themselves, 25 because they exchanged the truth about God for a lie and worshiped and served the creature rather than the Creator, who is blessed forever! Amen.
26 For this reason God gave them up to dishonorable passions. For their women exchanged natural relations for those that are contrary to nature; 27 and the men likewise gave up natural relations with women and were consumed with passion for one another, men committing shameless acts with men and receiving in themselves the due penalty for their error.
28 And since they did not see fit to acknowledge God, God gave them up to a debased mind to do what ought not to be done. 29 They were filled with all manner of unrighteousness, evil, covetousness, malice. They are full of envy, murder, strife, deceit, maliciousness. They are gossips, 30 slanderers, haters of God, insolent, haughty, boastful, inventors of evil, disobedient to parents, 31 foolish, faithless, heartless, ruthless. 32 Though they know God's righteous decree that those who practice such things deserve to die, they not only do them but give approval to those who practice them.