The Tyranny Of Activist Judges

April 7, 2009

Here’s conservative pundit Ramesh Ponnuru in a discussion on Iowa’s supreme court decision on gay marriage on the Washington Post’s website:

“Iowa’s supreme court has ruled that its constitutional guarantee of “equal protection” for all people requires the state to recognize same-sex marriage. The court overturned a law passed in 1998.

In a democratic system such as ours, it can be perfectly appropriate for courts to set aside laws. Constitutions reflect the permanent will of the people, which trumps the temporary will of the people as expressed in ordinary statutes (if a court is forced to choose between these sources of law to decide a case).

But nobody can plausibly claim that Iowans meant to ratify same-sex marriage when they approved a constitution including equal-protection language. Nor can anyone plausibly claim that Iowans meant to authorize judges to decide such matters as marriage policy when they approved that language.

The court’s ruling thus has no democratic or constitutional legitimacy. Whether or not same-sex marriage is a good idea, the decision by Iowa’s court to impose it on the state is an outrage.”

I need to repeat that line: “nobody can plausibly claim that Iowans meant to ratify same-sex marriage when they approved a constitution including equal-protection language.”

I’m not a constitutional law scholar, but since when do we interpret constitutions based on how those who ratified it hundreds of years ago imagined it being applied?

The right-wing punditry has repeatedly offered an insanely hardline version of judicial originalism and tried to pass it off as common sense to the public. Someone in the mainstream media really needs to call them on their bullshit and point out that these ideas are far, far outside mainstream legal thought.

If a constitution guarantees equal protection under the law, that guarantee needs to be applied to all cases. It doesn’t matter whether or not the people in 1787 or whenever managed to foresee every single imaginable application of that guarantee. In fact, if we really did have to demonstrate such forethought every time a constitutional guarantee was applied, we wouldn’t have a functional constitution at all, as it would be impossible to apply it to any novel circumstance. At a minimum, we would have to roll back most if not all of the most far-reaching court decisions from the past century, from ending segregation and Jim Crow to all modern guarantees of free speech and free religious practice.

And I’m certain that Ramesh Ponnuru, Rush Limbaugh, Bill O’Reilly, and Focus On The Family would all suddenly abandon their brand of originalism once all the free speech guarantees established by early 20th-century case law were rolled back.

Seriously, why the bullshit? These guys just don’t like gay marriage, and they’re making up legal arguments to fit that. Why not just come out and say they don’t like gay marriage? Why all the smoke and mirrors about ‘activist judges?’ Do they think it makes it harder to call them out for their bigotry?

And what are they going to say now that the Vermont legislature passed a gay-marriage law? They can’t blame that one on activist judges. Activist legislators, maybe? Damn legislators, what makes them think they have the power to make laws?

Maybe they can concoct a novel legal argument on how the new Vermont law is unconstitutional.

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