Thursday, August 5, 2010

Overturn of Prop 8

Was our system of government designed to allow 1 singular judge to overide the votes of millions?

This post isn't about gay marriage, but about the power we give one judge and the role of democracy in America. What role does democracy have in America? Is it only there to elect officials? If so, why do non-elected officials have power to change the policy created by millions?

I've been thinking for some time about what role judges are supposed to play in America? Their role is loosly outlined in the constitution and has been outlined in more detail mostly by the judges themselves.

We know federal judges are there to balance the power of the legistlative and the executive branch of government. But now it seems that they don't balance, they trump.

The only way to trump the supreme courts of the land is for the other two branches of government (who have enforcement power) and the people to ignore their rulings. This has happened before, but I think now we see the federal judges as the highest power in the land and I don't see that happening anytime soon.

But I could be wrong.


Spencer said...

Sadly this is only one example of our current governmental branches completely overstepping their bounds. In the last couple of years the rights of individuals and states has been completely eroded and the judicial branch has determined they are the higher moral compass for America. The most frustrating part about it to me is I don't have any clue how to stop it. I already know my vote doesn't count in elections, and now even if it had counted in forming a law, a single judge with an agenda has the right to take that away.

Spencer said...

thought you might like this article too

NoSurfGirl said...

I'm not sure any of us are really sure what the 3 branches of government are supposed to do anymore.

Congress didn't censor Bush for going to war, or stop funds, even though they could have.

The judicial branch overturned the will of the people... which is supposed to happen on occasion, but in a case like this? I don't know. Minorities are important, and we don't want to oppress them, but something like the civil rights movement and actual passed legislation had to take place to get rid of Jim Crow. This is one state's judiciary system deciding to take a moral stand and make a statement.

Of course, it's not over yet (supreme court).

Josh said...

That was a really interesting article Spencer. I've wondered when marriage became both an institution of the state and of religion. A part of me really agrees with the author's argument that marriage shouldn't be debated because it has nothing to do with the state, but then a part of me can see why the state would really care about the institution of marriage and want it as part of the societal makeup. Maybe that is way to saving marriage as we know it, take the state out of the equation.

NoSurf, I think you're right about the uncertainty virtually everyone feels about when it comes to what the roles of each branch of government really are today. But does that mean we don't already have a well outlined separation of the branches of government to refer to?

Prop 8 was supported by the state of California's Supreme Court. It was overturned by a single federal judge (which only had immediate repercussions on the state of California, but from my current understanding of the judicial system it can affect the rulings of federal judges in other states). Like you pointed out this ruling can push this case to the federal supreme court, which if they ruled on it would make the decision have national consequences. Check out that blog post I just recently linked to in my latest post, I think my friend did a good job explaining the difference between a right and a privilege and how this instance is different from the civil rights cases of the past.

Bout congress and Bush, I think you're right, the congress could have done something about the war, but they didn't. Which hints to me that protests against the war by congress was just a bunch of hot political air. Especially since a majority of congress voted for funding the war in the first place. I think congress and the president in general (while I'd agree that the executive branch has been given far too much power) is still relatively equal. Congress could have done something about it, if they wanted to.

Our judicial branch, not as much. At least from my current perspective. They seem to make many things part of the constitution by deeply "reading between the lines." Instead of saying "the constitution doesn't cover this point in detail so if you don't like it make an amendment," they say "yes it's constitutional, or no it's not." Perhaps that is how it needs to be. Maybe the only way to make it better is for our population to become more of a moral people than the amoral people we are trending towards. The supreme court got its real power when it decided that what it said was a direct extension to the constitution itself. So in essence they can build on the constitution without following the amendment process.

I'm curious what everyone thinks about that. About what role the judicial system, especially in regard to rulings on legislations, should be playing according the constitution and the general ideas of the founders. And if those are too outdated, why are they outdated and what role should the judicial system play today?