When the people’s fundamental law is ignored by the legislature, the remedy is typically to elect new representatives to set things right. If the people’s fundamental law is transgressed by the courts, the correction is often not so easy. Many judges are appointed for life and never have to face the electorate. Others are appointed by special commissions and face a retention election after a period of years. Only a few are popularly elected and face the people at regular intervals.
Thus, to combat judicial usurpations effectively, the people usually must resort to amendments to their constitutions. The Founding Fathers thought that this power in the people was critical. James Wilson of Pennsylvania, for example, averred that “the people may change the constitutions whenever and however they please. This is the right of which no positive institution can ever deprive them.”
As evidenced in February, the Ninth Circuit Court of Appeals is not familiar with (or just does not care about) Wilson’s theories of popular sovereignty. In Perry v. Brown, the Ninth Circuit upheld a federal district-court decision striking down California’s Proposition 8. A 2008 ballot initiative, Proposition 8 was a response to a state-court ruling whereby judges found a right of homosexual “marriage” in the state’s constitution. Proposition 8 clarified that marriage, under California’s fundamental law, is a union between a man and a woman.
Because the Ninth Circuit is the most activist court in the country, the end result of Perry surprised no one. What was alarming, however, is the way the court reached the decision and how it placed judicial lawmaking over popular constitutionalism. In framing the issue, the court stated that the ballot initiative “singles out same-sex couples for unequal treatment by taking away from them alone the right to marry, and this action amounts to a distinct constitutional violation because the Equal Protection Clause protects minority groups from being targeted for the deprivation of an existing right without a legitimate reason.” In other words, the court declared that it had to examine the case in light of the deprivation of a preexisting right.
So, when did this “right” come into existence? From California’s admission to the union in 1850 until 2008, the state’s law recognized marriage as being between one man and one woman. In 2008, the California Supreme Court discovered that homosexual couples had, hidden away in the state constitution, a fundamental right to marry. Just a few months later, the people of California enacted Proposition 8 to return the definition of marriage to its traditional roots. A little over six months passed between the California Supreme Court’s ruling and the approval of Proposition 8.
Despite the quick response by the people, the Ninth Circuit in Perry lectured that “Withdrawing from a disfavored group the right to obtain a designation with significant societal consequences is different from declining to extend that designation in the first place, regardless of whether the right was withdrawn after a week, a year, or a decade.”
What the Ninth Circuit failed to mention is that neither the people of California nor their elected representatives have ever endorsed a specific provision recognizing homosexual marriage. The sovereign power of the state—the people themselves—has never extended the definition of marriage. From 1850 to 2008, the people, legislature, and even the courts understood marriage was limited to opposite-sex couples. It was not until the California Supreme Court “discovered” this new right in a provision not mentioning the word marriage that anything could be withdrawn from homosexual couples.
Thus, in 2008, a state court jettisoned the traditional understanding of marriage and found a new right that no one else knew was secreted in the California constitution. When the people amended the state constitution to return things to the status quo, federal judges intervened and struck Proposition 8 as violating the U.S. Constitution. To reach this result, the Ninth Circuit relied on the repudiated state-court decision to cast the case as one in which the ignorant people haphazardly took away the settled right of homosexuals to marry.
So much for the people’s right to “change the constitutions whenever and however they please.” An artificial body’s constitutional exegesis is raised above the unequivocal action of the sovereign people.
In Perry, we are treated to state and federal courts working in conjunction to achieve a result favored by our enlightened ruling class. The people of California acted to amend their constitution to combat judicial usurpations. The Ninth Circuit declined to give dignity to the people’s efforts and instead elevated an aberrant state-court ruling above the voice of the people.