No doubt conservatives are applauding the decision of the California Supreme Court. And while I don’t think that decision will mean the demise of equal marriage rights in California, I don’t think the decision is a good one. And, surely any conservative that believes in individual rights (and there must be a couple such creatures left in existence) shouldn’t applaud the decision.
There is much in this decision that ought to scare the shit out of anyone who believes in rights. Let’s look at just a couple of points.
The court said that the Attorney General, who supported the overturning of Prop 8, “characterizes certain rights as ‘inalienable’.” The court responds that, “the ‘inalienable nature of a constitutional right never has been understood to preclude the adoption of a constitutional amendment that limits or restricts the scope or application of such a right.”
The term “inalienable” means: incapable of being alienated, surrendered, or transferred. But not in California. All inalienable rights in California apparently are alienable after all. A right that cannot be transferred is one that no one can transfer, including a vote of the majority of the voters. What the California court seems to be saying is that the very concept of “rights” is non-existent and all that anyone enjoys are legal privileges, which may be repealed anytime the dominant power in the state wishes to do so.
Of course the initiative process was pushed through in California in 1911, during the heyday of the Progressive movement there. It was a Left-wing “reform” which basically enshrined majority rule as the dominant principle. I don’t mean majority rule in the sense of the majority being able to elect officials. I mean that the majority can decide what rights the minorities have. That idea would horrify the Founders but the Progressives liked it.
What the Progressives liked about popular referendums was that they felt they could around Constitutional restraints on government power that way. Constitutions tended to limit state power and Progressives wanted big government with expansive powers. They argued that “the people” had unlimited powers and could do virtually anything they wished. Therefore “the people” could give the state such powers. Our Founders, of course, argued that while government comes from the people that there are rights, which precede, and are superior, to all government.
These rights, said the Founders, were inherent in human nature. The term “natural rights” was often used to explain them. They argued that since rights precede government that the purpose of government is protect such rights and that no government, not even one supported by the majority, could properly trespass on those rights. “Not so,” screamed the Progressives. And joining them in that chorus are the modern day conservatives.
The court actually noted that the Attorney General “cites selected excerpts from a number of mid-19th-century opinions that gave voice to the natural-rights jurisprudence that was common in that era.” To be fair, this “natural-rights jurisprudence” was also common to the Founding Fathers and inspired such things as the Declaration of Independence and the Bill of Rights. But, don’t worry say the Republican justices in California: “As pointed out in the response filed by interveners, however, the expansive natural-rights jurisprudence of that time long has been discredited….”
The “interveners” were those individuals who supported Prop 8. At least one of them, if not all of them, were thus arguing in the Supreme Court that there are no such things as rights, just legal privileges which the state, in the form of the majority, may take away whenever they feel like it. That is what conservatives were arguing in order to indulge their antigay passions. In a second passage the court says: “The natural-law jurisprudence reflected in passages from the few early judicial opinions relied upon by the Attorney General has been discredited for many years….”
The justices said that while Constitutions often, I would say normally, restrict the power of majorities to strip minorities of their rights, “the California Constitution contains no such restraints” which “place some subjects or portions of the constitution off-limits to the amending process…”
The concept of rights is not just a limitation on the powers of the state but also limitations on the powers that one person may exert over another person. Rights mark boundaries where no one, not even majorities are allowed to trespass. When conservatives are arguing that this doctrine is “discredited” and that majorities may do whatever damn well they please, then conservatives have joined the most radical wings of the Progressive movement.
In many ways this ruling had the world upside-down. Attorney General Jerry Brown, a Democrat, was appealing to natural rights and limitations on the power of majorities, while the conservatives were arguing for expansive powers for the state and claiming that natural rights are discredited and may be ignored. In the long run I suspect the conservative/Progressive theory will continue to dominate the courts since so many judges, as political appointees, are beholden to the powers that be. Since the Progressive/conservative alliance against individual rights loosens the reins of government power the political elites will tend to be drawn to this theory. After all, this theory says they may pretty much do what they wish since rights are a quant fiction from the 19th century.
The Separation of Marriage and State
How the Religious Right guaranteed marriage equality
Libertarians: Pro-family means pro-freedom
Abandoning the Rule of Law
Ignore the State
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