This country was established by the people and for the people...
Let me introduce you to a little passage from the Declaration of Independence...
Note that phrase... governments derive their powers from the CONSENT of the governed. Judges are not kings that rule from on high.
"For the People", however, doesn't necessarily mean "For the majority people lording it over the minority of the people." It means that there's something in this system for all
of people, even if 51% or 99% of the country might stand against the rights of a minority. The power of one part of the people over another part of the people is not absolute. All of the people are "The People", not just the ones whose opinions are in ascendance at a given moment. Neither the Declaration of Independence nor the preamble to the Constitution are endorsements of majoritarianism.
Declaring that a law is unconstitutional can give judges a lot of power in some cases, but not "kingly" power. Judges are appointed by elected officials, or in some cases directly elected. The Senate, a body of elected officials, provides an "advice and consent" role in federal judicial appointments. Clearly the power of judges therefore derives from the CONSENT of the governed.
The fact that a judge might well be appointed for life, and make decisions the The People don't like, doesn't change the fact that his or her power derives from The People. Although it is difficult, judges can be dismissed for malfeasance. That is one check on their power. The Constitution can also be amended, which provides another check. These checks on judicial power are deliberately
difficult apply, but they are there.By design
the power of judges is meant to be insulated from political influence. If it's the job of a judge to sometimes declare that what (the majority of) "The People" want isn't permissible, that judge is naturally going to occasionally invoke the wrath of those who consented to give him such power in the first place. That's part of his or her job, a necessary and expected part.
Is this judicial system elitist? You bet. Like it or not, a little elitism is designed into our system of government. There is no perfect answer here. Without restraint, the majority will
abuse minorities. Put judges in as a buffer against majority power abuse, and sometimes those judges will
abuse their power. The Founding Fathers decided that the latter was the lesser of two evils, that there should be some place in our system of government where education, experience, and (one hopes) wisdom matter more than populist clamor.
[QUOTE][B]Note the phrase, whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it.
The judges in Mass. did not respect the laws or the other branches of government.
It's the job of the judiciary to decide whether or not those laws should stand, to decide if
those laws should be respected or not.
Don't rally against a strawman you set up. I never claimed it had to be unanimous
Who cares how long it stood? Are you the one who spends the rest of a couple posts arguing about age and historical precident? .
You didn't say flat-out that judicial decisions had to be unanimous, but you certainly made a clear implication that the dissent of a number of judges from the majority was some kind of indication that what the majority did was <shudder!> "activist". You made the same implication about turning over laws that had stood for a long time. I wasn't making a straw man at all. I was demonstrating the absurdity of what you implied by focusing on what your implications would mean, regardless of whether you like how those implications sound when they are played out.
Applying historical precedent has nothing to do with slavishly following past judicial and legal practices. It is simply a way of providing broader context for the sparse wording of the Constitution, a way of creating a more stable and predictable basis for making judicial decisions. Applying historical precedent to same-sex marriage laws wouldn't have as much to do with how long those marriage laws had stood as it would with the entire history of how gender has or has not been allowed to play a part in the application of any
Actually you should do a bit of reading on Brown. School segregation was almost exclusively a Southern institution. It was not tolerated by the rest of the country. Brown overturned Plessy v. Ferguson which sanctioned segregation. The problem was segregation was of course that you had two groups who were supposed to be receiving equal rights according to the constitution. They were also entitled to those rights according to the Constitution. However when reviewed they found that the although the conditions were often seperate, they were hardly ever equal.
In those states where segregation was practiced, however, local majorities supported the local laws. That the country as a whole didn't approve of segregation merely turns this into a matter of state and local rights vs. federal power.
We do not have a homosexual right to marriage written into the Constitution as were the rights of black people. Additionally we have not granted homosexuals seperate but equal rights based off those Constitutional guarantees which we then overturn to make just equal but not seperate.
If you want to be stubborn about what's literally written into the Constitution (and conveniently ignore things like the Ninth Amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."), you could still call BvsBoE <shudder again!> an "activist" decision. You could insist that because the Constitution says nothing about segregation that the proper solution would simply have been more diligently making sure that the segregated schools received equal funding and met equal standards. Segregation proponents could say (and did) that those damned overstepping liberal judges created rights out of thin air with their weak, self-serving argument that separate could never be equal. How do they know seperate could never
be equal? They didn't give us a chance to prove we could fix it and make it equal, they just imposed
themselves on us! (Rant, rant, etc., etc.)
More than enough for now for one post I'll have to stamp out the rest of your facile case later.