The Liberty Preservation Alliance

As you may know, there is a real problem with judicial activism in the United States. Nothing illustrated this clearer than the recent ruling overturning the ban on homosexual marriages in the State of California. The problem that I have with this decision is not that I oppose gay marriage, I do, but rather that the justices overruled the will of the people not based on the state constitution’s wording but their personal activism.

Ed Whelan over at National Review has been writing on this topic since the ruling. He writes the following:

Chief justice George’s majority opinion reeks of judicial imperialism and rarely takes notice of those pesky yahoos called citizens. When it does, it deals with them dishonestly.

For example, George writes: “If civil marriage were an institution whose only role was to serve the interests of society, it reasonably could be asserted that the state should have full authority to decide whether to establish or abolish the institution of marriage.” (62 (emphasis added).) By “the state,” George in fact means California’s citizens, whether acting by voter initiative or through their legislators (and he posits an unattractive hypothetical argument that defenders of traditional marriage need not, and apparently did not, make). So we have George, in the course of a flagrantly illegitimate exercise of state power, trying to cast aspersions on the legitimate power of citizens.

Even more brazenly, George later tries to defend his usurpation of the “people’s will” by arguing that the “provisions of the California Constitution itself constitute the ultimate expression of the people’s will.” (113) In a sense, yes—when they are faithfully and properly interpreted and applied. But not when judicial activists like George stretch their terms beyond what the people who adopted them could possibly have meant.

Thankfully Whelan points out that it appears that the good citizens will be able to overturn this blatant act of judicial activism in the election this fall.