Yes it was judges upsurping power they did not have, yet I noticed right as well as left these days demands change through the courts, so both sides are hypocritical

Also, consider that gay marriage is nothing more than a distraction issue, meant to turn us away from facts that our government is wasting and devaluing our money and people are dying non-stop in Iraq.  And consider the timing, when right now the neocon controlled republicans are not doing so well, and bam!  we suddenly have one of those false issues republicans can use again to get them elected this november (See guys?  if you don’t elect us republicans, more of this will happen!) despite the fact that under mccain we will have more of this anyways, perhaps more than even under Obama.  By making us believe that gay marriage will turn the world upside down, the neocon elites hope to fool us into electing them in november, where they will then continue and expand their murder rampages around the world, meanwhile not doing a damn thing about gay marriage.

Yes, here we go again. It would seem that libertarians would go with the Jeffersonian ideal that what my neighbor does that does me no harm or robs my pocket combined with the concept of individual freedom wouldn’t give a hoot about this. But Republicans are looking desparate around DC and can be expected to bang the big drum about gay marriage and activist liberals. I don’t know how loud it will have to be to work.

Out of work former homeowners are busy burying theit dead soldier sons and daughters who are dying to preserve liberty, authoritarian dictatorship and Saudi oil lords. It’s hard to pin down what’s moral with so much immorality enshrined as God’s beloved will.

Judicial tyranny my rusty dusty!  The real problem is that marriage exists in two realms, the spiritual and the legal, and they aren’t exactly the same.  Lest I offend those who are far more spiritually enlightened than I, let’s just say that that part is between man and/or woman (men and women?) and God, period.  The legal part is an enforceable contract providing certain benefits and certain responsibilities.  My understanding is that, in France and Israel, one goes to the church, temple, mosque, ashram, or the place of choice to get united in the sight of the Lord, which union has little or no legal effect.  To form a civil union, or enforceable contractual relationship, the proper venue is City Hall, the courthouse, or maybe the Justice of the Peace’s establishment.

Why one shouldn’t be able to form a civil union with the party of one’s choice is a question which should have an obvious answer to those of libertarian leanings if not the social conservatives.  If I should wish to enter a legally enforceable relationship with Francis the talking mule, I should be able to do so if Francis is agreeable.  Marriage in the sight of God is another matter entirely.

Didn’t former Senator Goldwater state flatly that his kind of conservatism kept government out of people’s personal lives?

I believe Jefferson believed in capital punishment for practicing homosexuals. He certainly was against legalized same sex relationships. This is another reason to vote against Obama and McCain. They will give us both us the kind of judges that passed this decision, very good essay Tom.

“I believe Jefferson believed in capital punishment for practicing homosexuals.”

He wrote a bill that penalized such crimes with mutiliation.  See “A Bill for Proportioning Crime and Punishments, 1778.”

There must be a significant power rush for those supporting the mainstreaming of this faddish radicalism, considering decisions like the California one are used to sue governments and businesses into compliance, to push church-run adoption programs out of business, to rewrite education curricula, and to enact all sorts of other mischief. 

The danger is not much from the inactivist set of the “GLBT” crowd.  Rather, the problems come from the progressives who use the GLBTs as mascots to batter down political and cultural opponents and to aggrandize their own positions.

“If I should wish to enter a legally enforceable relationship with Francis the talking mule, I should be able to do so if Francis is agreeable.”

That’s a ridiculous comment, Reg. How on earth could a mule enter any legally enforceable relationship with a human being when mules can neither read nor write?

The most ancient words of the English language prove that marriage is indeed a contract between a man and a woman so I’ll spell it out for you.

The partners to a marriage are the bride and groom. After marriage they become wife and husband. If they are blessed with children they become mothers and fathers. If they live long enough they become grandmothers and grandfathers. And when one of them dies they become a widow or widower.

What part of the English language don’t gays understand?

You know, Mr. Piatak, I thought you’d written an excellent piece but upon reading the commentary I now realise the crux of the matter is not judicial tyranny and our loss of liberty but the Neo-Cons who run California and won’t let homosexuals marry like they do in France.

Nice try.

P.S. Thanks to a present from The Bride, I now receive Chronicles and the very first article I read was one written by you.

Fantastic periodical.

I am not Spartacus:

Thanks, I’ll try harder next time.

Glad you’re getting Chronicles.  It’s a wonderful magazine.

Mr. Piatak’s appeal to original intent is not supported by the passage he quotes.  (And the will of the majority, to which he appeals as well, is of course irrelevant to most constitutional decisions.)

Justice Curtis is quoted as supporting “a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws”.  There’s nothing here that implies an “original intent” approach; in fact it seems closer to textualism.  What would seem to matter to Justice Curtis is what the California Constitution actually says (I have no idea what that would be) and the “fixed rules” (ditto) of interpretation, not how the framers would have felt about the constitutionality of gay “marriage”. 

By the way, Mr. Piatak says the quote is via Justice Scalia, and I believe Scalia considers himself a textualist, not an originalist.

The notion that any constitution in the United States carries buried within it the “right” to gay marriage is an absurdity, as Justice Scalia would agree.  And allowing courts to create such a fictive right is the very essence of judicial tyranny.

For those who are interested, here are Scalia’s dissents in Planned Parenhood v Casey and Lawrence v Texas, where he sets forth his view that both text and tradition are of importance in constitutional adjudication, as well as his respect for the democratic process:

http://members.aol.com/abtrbng/505scl1.htm

http://www.orthodoxytoday.org/articles2/ScaliaLawrenceDissent.shtml

I’m not arguing at all with your conclusion, just noting that it doesn’t follow from your premises.  A Scalian argument would examine the constitutional text itself, in its historical context, not appeal to the intent of those who wrote it.

Also, I’m aware of Scalia’s eloquent arguments for parliamentary as opposed to judicial decision-making and of the importance to him of tradition.  Nevertheless, textualism and originalism are two very different theories of interpretation.

And the will of the majority, to which he appeals as well, is of course irrelevant to most constitutional decisions.)

Mr. Almoni. That particular idea has been for sale at an, apparently, very cheap price for a very long time.

Beware of bargain shopping.

Liberty is the actual hidden cost of that idea.

Are you one who thinks the Supremes are the sole ones who can decide which laws are Constitutional or UnConstitutional?

If our “conservative” elected officials actually had a clue; if our elected “conservative” officials actually discharged their oaths of office; if our elected “conservative” officials knew the Constitution (they clearly do not), then you would see them telling the Supremes to stick their decisions where the sun don’t shine.

Then, they could impeach every single bastard who approved the unconstitutional law and then they could vote to take jurisdiction away (Abortion, for instance) from the tyrannical bastards.

“Sorry, you miserable tyrannical bastards. You can’t decide abortion disputes anymore. That ain’t your damn job. Now shut-up and get the hell back to your chambers before we send you to Gitmo.”

The President could do the same damn thing. But he won’t.  For instance, Bush should have told the Legislative Branch to cram McCain-Feingold. He had a duty to do that. Did he? NO. He will not discharge his oath either.

The Legislative and Executive Branch (through whom our will is supposed to be exercised)are abominations.

They let the Supremes get away with declaring they (supremes) are the ones who decide what The Constitution means.

And all that did was destroy the idea of separate and equal branches of govt. and abort liberty and the exercise of our will via the electoral process.

IOW, we ain’t any longer free men deciding together how we ought order our lives.

Other than that, I got no problem with what you wrote.

I don’t see any real difference between originalism and Scalia’s philosophy in this instance, because at no point in American history before the last ten or so years did anyone, anywhere think that the US Constitution or any of the state constitutions conferred a “right” to gay marriage on anyone.

I have read Mr. Piatak’s column three times.  I can’t find anything in it with which I differ.

Maybe we should give CA back to the Mexicans, or let them take over.  Aside from the fact that they would be taking back what was once theirs, they probably wouldn’t have such decisions. I’ve always regarded CA a foreign country as it is, and the Lincolnlands/Gringoland not a “nation” at all.

You make a very good point, Ploni Almoni. I worked in the Reagan Justice Department when the “jurisprudence of original intent” was shouted from the housetops, and later I reluctantly concluded that there’s not much to it. I don’t agree with Ronald Dworkin on many things, but his critique of Robert Bork and originalism is to my mind utterly convincing. As for textualism, what exactly is it supposed to allow us to conclude whenever language is vague or indeterminate or abstract? I hugely admire Justice Scalia, but I think he’s wrong to defend textualism.

Mr. Zaretzke:

Given your experience, I would be interested in your suggestions on how best to deal with judicial imperialism as exemplified by the California Supreme Court.

Too bad impeachment isn’t really an option.

Am I the only one here who thinks Dred Scott was correctly decided?

“Mr. Pitiak,
What do you have against the Brimlows? “

(Mr. Piatak, I have copied this from Ron L.’s comment on your newest article, since for some reason there’s
no combox there.) Why in the hell can’t anyone spell your name correctly?!  You would think that they
would look at your name, say, “wow, that’s Eastern European—I’d better make sure I spell it correctly when I
write it.” But no, they just write down whatever they like.  As long as there are a “p,” “t,” “k,” and
some vowels, voila!  They just write it down.

Caper,

Thanks for defending the dignity of my name!  By the way, it means “Friday,” in the dialect spoken in the Piatak ancestral village.

Tom Piatek:

In my retrospective view, the biggest problem in the Regan Justice Department was overconfidence. There’s no antidote for overconfidence except for intellectual humility. For that, I can only recommend the study of philosophy.

In general, conservatives today are way too overconfident about originalism, “strict construction,” and what have you. It’s like an echo chamber.