CA Marriage case: a documented study in juridical tyranny!

johnwk · by **johnwk** on 06/12/08, 8:35 am

Please note this thread is about the separation of powers in our system of government, and the legislative power being exercised by the Court in violation of the rules of our constitutional system.

If there was ever a court ruling confirming the contention that our judicial branch of government is violating the very core of our constitutional system’s separation of powers doctrine and “legislate from the bench” and using its office of public trust to impose its whims and fancies as public policy upon the people, that court ruling is without question California’s recent case in which four arrogant justices on California’s high court struck down America’s traditional definition of marriage ___ a definition legally understood in America for countless generations as being a union between one male and one female.

The opinion of the court in this case, In re MARRIAGE CASES, decided May 15^th, 2008, authored by Chief Justice C.J. George declares that:

"retention of the traditional definition of marriage does not constitute a state interest sufficiently compelling, under the strict scrutiny equal protection standard, to justify withholding that status from same-sex couples" (PAGE 118)

But the “strict scrutiny” standard relied upon by Justice George happens to be a modern day test invented and nurtured by the Supreme Court of the United States and lower state courts to create a vehicle for justices and judges throughout the united States to semantically subjugate the very intentions and beliefs under which our constitutions, state and federal, were adopted, and to allow the court to impose its own whims and fancies and sense of social justice upon the people ___ in effect recreating a system which mimics the English House of Lords which was unrestrained by a written constitution, and which our constitutional system was intentionally designed to forbid!

Keep in mind a “strict scrutiny standard” is not found in the text of the United States Constitution, nor was such a test ever contemplated by our founding fathers to be used by our courts in deciding the constitutionality of a law based upon the court’s opinion as to whether or not the law in question furthered a “state interest sufficiently compelling” to be upheld or struck down on such grounds.

Indeed, under our constitutional system our legislative branch of government ___ the people’s elected legislature ___ is vested with the power to enact law which it, and only it, have determined will promote the general welfare and best interests of the people and the State. Second guessing the wisdom of laws passed by the Legislative branch of government by our courts, which Justice George is quite comfortable in doing, is not the Court’s job under our system and violates the fundamental separation of powers in our constitutionally limited “Republican Form of Government“, a system of government which is guaranteed to every State in our union by Article 4, Section 4, of our federal Constitution.

The irrefutable fact is our constitutions, state and federal, are the supreme law of the land and there is no provision or legislative intent within the four corners of our constitutional system suggesting the Court may declare a law unconstitutional or constitutional based upon a test which no longer determines the constitutionality of a law, but rather, allows the Court to arbitrarily determine whether a law is, e.g., “reasonable“, or arbitrarily decide that the law in question “does not constitute a state interest sufficiently compelling,“ or, that a law bears a “rational” relationship to the state's best interests ___ all of which is designed to allow the Court to declare laws which do not fit the Court’s own idea of social justice as being unconstitutional, while laws which may advance the Court’s idea of social justice or advance the personal predilections of members of the court are amazingly found constitutional under these semantic “tests“ invented by the Court to assume a public policy making authority.

The distinction between our constitutional system and its most fundamental rule, which is to enforce the intentions and beliefs under which our constitutions, state and federal, were adopted, as contrasted by a system in which a Court may overturn laws by arbitrarily declaring they do not promote a compelling state interest, is exhibited under Israel’s system of government and a set of laws called the “BASIC LAW” of Israel.

After listing a number of rights which the people of Israel are supposedly entitled to, which are somewhat similar to our federal Bill of Rights, No.8 of the BASIC LAW OF ISRAEL declares:

“There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required”

And so, those in political power, acting through Israel’s judicial system, may scrutinize a law and uphold it or strike it down by alleging the law “does not constitute a state interest sufficiently compelling“ to be upheld, which in turn allows a handful of citizens to “interpret” laws to meet their own purposes under the guise of promoting the best interests of the State of Israel.

But in our system, if there is any legitimate scrutinizing to be applied when determining if a law is or is not constitutional, that scrutinizing is to be applied in determining the intentions and beliefs under which a constitution, [each article, section, clause, and amendment] was adopted, as they may be documented from historical records. and then enforcing those intentions and beliefs. To state this rule a different way, let us recall the words of one of our nation’s leading founding fathers:

"On every question of construction [of the Constitution], carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed."--Thomas Jefferson, letter to William Johnson, June 12, 1823, The Complete Jefferson, p. 322.

The fact is, members on the SCOTUS in the 1960’s - 70’s, started to blatantly ignored the narrow and limited intentions for which the 14^th Amendment was adopted and took it upon themselves to use their office of public trust to impose their personal predilections and social reforms upon the entire population of America, and did so by creating the very kinds of test which Justice George used to impose his personal feelings upon the entire population of the State of California.
Some of the important cases which document the U.S. Supreme Court’s use of its power to impose its own standards of social justice are:

Reed vs. Reed 404 U.S. 71 (1971)
Frontiero vs Richardson Secretary of Defense 411 U.S. 677 (1973)
Craig v. Boren 429 U.S. 190 (1976)
Also see, United States vs. Virginia 518 U.S. 515 (1996)

It is interesting to note that the ACLU and Ruth Bader Ginsburg, who now sits on the U. S. Supreme Court and was a volunteer for the American Civil Liberties Union in the 1970’s, was very active in these cases and assisted the Supreme Court in the formulation of the creative test which Justice George used to parse words and semantically subjugate the very intentions and beliefs under which California’s Constitution was adopted as he went on to legislate from the bench and impose his personal view of social justice upon the people by tyrannically assuming the legislative powers of government.

Heck, Justice George even recognized he was violating the separation of powers doctrine when he quoted in his opinion “(I)t is the legitimate business of the Legislature to attempt to close the distance between the parallel institutions (marriage and same-sex committed domestic partnerships) as they develop, and to address such concerns.” This very rule, the separation of powers doctrine, was also recently stated by the SCOTUS in ELDRED et al. v. ASHCROFT, ATTORNEY GENERAL (2003)

“…we are not at liberty to second-guess congressional determinations and policy judgments of this order, however debatable or arguably unwise they may be…The wisdom of Congress' action, however, is not within our province to second guess. “

Bottom line. The strict scrutiny relied upon by Justice George is an invention of the Court used to impose the Court’s own concept of social justice and subjugate the very intentions and beliefs under which our constitutions, state and federal, were adopted.

JWK

Those who reject abiding by the intentions and beliefs under which our Constitution was agree to, as those intentions and beliefs may be documented from historical records, wish to remove the anchor and rudder of our constitutional system so they may then be free to “interpret” the Constitution to mean whatever they wish it to mean.

Eyas · by **Eyas** on 06/12/08, 10:10 am

The abuse of the Constitution by the Supreme Court isn't new. It began a mere 14 years after the Government began operation in Marbury.

"It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each."
— Chief Justice John Marshall

(emphasis mine)

This word, "interpret" -- this one little word -- has since been "interpreted" to give carte blanche to Justices to replace the PLAIN LANGUAGE of with their own personal idea of what the Constitution means.  It has, indeed, gotten worse since the 1970's when justices began replacing the Plain Language of the Constitution with what they think it ought to mean, or what they wish it meant. (which Breyer, especially, does to this day)

We shouldn't forget that Congress ostensibly has the power to overturn any particular ruling, or to stop this practice outright.  BUT, guess who gets to "interpret" that very overturning?  SCOTUS.

Besides, Congress has chosen to defer to the judgment of Judges.

I hate to say this; but, the U.S. Constitution is/was fundamentally flawed from its drafting because it never made clear the limits of Judicial Review, Judicial "Interpretation", and Judicial Activism.

The only solutions to the problem of judicial activism are:

1. a Congress with serious cojones;
2. a tightly worded Constitutional Amendment;
3. a President willing to essentially create a new executive power by overturning rulings by EO (Presidential fiat), and enforcing such with his power as Chief Executive and Commander in Chief; OR
4. a new Civil/Revolutionary war.

I, myself, prefer option #2.  But it's not necessarily the most likely outcome.

paleocon · by **paleocon** on 06/12/08, 3:53 pm

I actually posted the following comment on another blog today in relation to the recent SCOTUS decision on GITMO detainees but it applies here. Of course, it is SCOCA in this case and not SCOTUS.

PaleoCon wrote:This is one of the most stunningly stupid decisions to come out of SCOTUS since Kelo.

It is idiotically unconstitutional decisions like this that will ultimately lead the people to act to reclaim the government from the tyrants who increasingly use their position to overthrow the Republic.

Sorry if it is bad form to quote one's self.

johnwk · by **johnwk** on 06/20/08, 5:11 pm

The more I study the decision of the Court, the more apparent it becomes Justice George knowingly and willingly intended to impose his personal predilections upon the entire state of California and did in fact “legislate from the bench”!

The part of California’s Constitution alleged to be violated and repeatedly referred to by Justice George is Article 1, Declaration of Rights, SEC. 7(a) which states in part that:

“A person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws…”

The job of Justice George who authored the Court’s opinion is articulated in the oath of office he took and requires him to support and defend “the Constitution of the United States and the Constitution of the State of California …” and not one which Justice George makes up as he goes along.

In addition, the most fundamental rule of constitutional law is to carry out the intentions and beliefs under which each article, section, clause and amendment of a constitution was adopted as they may be documented from historical records.

In the instant case it is irrefutable that no “person” was denied the equal protection of the law under California’s marriage law and its legally understood definition of marriage as it applied to one male and one female. As a matter of fact, Justice George, in his own words confirmed that under California’s existing law, it

…has enacted comprehensive domestic partnership legislation under which a same-sex-couple may enter into a legal relationship that affords the couple virtually all of the same substantive legal benefits and privileges, and imposes upon the couple virtually all of the same legal obligations and duties, that California law affords to and imposes upon a married couple….pages 2 and 3 of the opinion.

Justice George also asserted:

“…assigning a different designation for the family relationship of same-sex couples while reserving the historic designation of “marriage” exclusively for opposite-sex couples poses at least a serious risk of denying the family relationship of same-sex couples such equal dignity and respect. We therefore conclude that although the provisions of the current domestic partnership legislation afford same-sex couples most of the substantive elements embodied in the constitutional right to marry, the current California statutes nonetheless must be viewed as potentially impinging upon a same-sex couple’s constitution right to marry under the California Constitution.” ___ pages 8 and 9

Justice George’s decision was not about the equal protection of the law as applied to individuals, but rather, his decision was to hijack legislative powers and change existing legislative definitions, erasing the historical definition of marriage as applying to one male and one female which was legally understood in California for over 150 years, and he did so by alleging :

“…retention of the traditional definition of marriage does not constitute a state interest sufficiently compelling, under the strict scrutiny equal protection standard, to justify withholding that status from same-sex couples.” [page 118]

In fact, Justice George violated the federal guarantee to a Republican Form of Government found in Article 4, Section 4 of the Constitution of the United States which recognizes a separation of powers, and he did so by imposing his definition of Marriage upon the entire population of the State of California without the people’s consent nor consent of the Legislature, and, did in fact imposed a definition which the people of California have actually rejected!

If there is any constitutional issue involved in this case, it is the subjugation of the federal guarantee to a Republican Form of Government by Justice George ____ a system in which the people’s elected legislature is to enact law, while the judicial branch is to enforce the protections guaranteed under a written constitution and not legislate from the bench.

JWK

"On every question of construction [of the Constitution], carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed."--Thomas Jefferson, letter to William Johnson, June 12, 1823, The Complete Jefferson, p. 322.

Eyas · by **Eyas** on 06/21/08, 8:51 am

As I said above, this kind of thing has been going on for years; and has been increasing exponentially in recent years.

The 9th Circus has long been ground zero for Judicial Activism; but, once upon a time, the SCOTUS could be relied upon (usually) to overturn the more eggregious unconstitutional rulings of 9th Circus Justices. No More.

Funny/scary story: on the final exam in my Constitutional Law class (taught by an avowed Communist), I expounded upon the virtues of Judicial Activism (I just wrote the opposite of what I believed) and I got an "A-" on the test. Meanwhile, a friend of mine (who routinely had better grades than I) actually wrote what he really thought -- he was given a "D" on the final exam.

paleocon · by **paleocon** on 06/22/08, 11:03 pm

johnwk wrote:The more I study the decision of the Court, the more apparent it becomes Justice George knowingly and willingly intended to impose his personal predilections upon the entire state of California and did in fact “legislate from the bench”!

Yes, I doubt anyone would argue with you on this point. The obvious, blatant disregard for the obvious meaning of the law and even recent precedence mean nothing. It is all about what they judges want to accomplish at that moment. They believe they are free to do what they wish for any reason they wish. It started before they began referring to international law but when I heard them openly admit that I was stunned. Obviously, anything goes today.

johnwk · by **johnwk** on 06/24/08, 9:44 pm

paleocon wrote:
johnwk wrote:The more I study the decision of the Court, the more apparent it becomes Justice George knowingly and willingly intended to impose his personal predilections upon the entire state of California and did in fact “legislate from the bench”!

Yes, I doubt anyone would argue with you on this point. The obvious, blatant disregard for the obvious meaning of the law and even recent precedence mean nothing. It is all about what they judges want to accomplish at that moment. They believe they are free to do what they wish for any reason they wish. It started before they began referring to international law but when I heard them openly admit that I was stunned. Obviously, anything goes today.

paleocon,

What is amazing is Justice George, after admitting homosexuals were entitled to virtually all of the same substantive legal benefits and privileges under California‘s existing domestic partnership legislation as opposite sex couples under California‘s “marriage” law [see pages 2 and 3, and 8 and 9 of George’s opinion], decided to hijack the legislature’s power and commanded the California Legislature to codify California’s marriage law in such a manner so that the word marriage shall henceforth apply to both same sex couples and opposite sex couples [see pages 120-21 of the opinion].

The whole case was about the word “marriage” ___ the plaintiffs feelings were being hurt because the California Legislature created a special law, domestic partnerships, for their very, very special relationship and they wanted to have the word marriage used.

What I don’t understand is the Legislature being so comfortable with Justice George exercising the Legislature's power. Something just isn’t right. I think there is complicity involved! I think the majority of the Legislature is happy with the decision but didn’t want to take the heat for extending California’s marriage law to homosexuals a long time ago.

JWK

paleocon · by **paleocon** on 06/25/08, 5:36 pm

johnwk wrote:What I don’t understand is the Legislature being so comfortable with Justice George exercising the Legislature's power. Something just isn’t right. I think there is complicity involved! I think the majority of the Legislature is happy with the decision but didn’t want to take the heat for extending California’s marriage law to homosexuals a long time ago.

JWK

Well, it is obvious that the Democrats at the national level have been turning to the courts to legislate what they cannot do in Congress. The state legislature in California probably does favor this decision but knew they couldn't pass such a law in the Statehouse since the people of California have rejected such measures in the past. Therefore, they chose to rely on the courts to create the legislation that they wanted in spite of the clearly expressed will of the people of the state. The judges have forgotten, or willfully ignore, the fact that the people ARE the government! This action is the very essence of judicial tyranny.

CA Marriage case: a documented study in juridical tyranny!

CA Marriage case: a documented study in juridical tyranny!

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Re: CA Marriage case: a documented study in juridical tyranny!

Re: CA Marriage case: a documented study in juridical tyranny!

Re: CA Marriage case: a documented study in juridical tyranny!

Re: CA Marriage case: a documented study in juridical tyranny!

Re: CA Marriage case: a documented study in juridical tyranny!

Re: CA Marriage case: a documented study in juridical tyranny!