Saturday, August 21, 2010


The casuistry of the man who would be Archon of California

"What Judge Walker's ruling means is you can sponsor a proposition, direct it, research it, work for it, raise $40 million for it, get it on a ballot, successfully campaign for it and then have no ability to defend it independently in court," said Dale Carpenter, a University of Minnesota constitutional law professor who supports same-sex marriage. "And then a judge maybe let you be the sole defender in a full-blown trial and then says, 'by the way, you never can defend this.' It just seems very unlikely to me the higher courts will buy that."

(Excerpted from here.)

The casuistry of Vaughn Walker, who fancies himself Archon of my home state, could not be more transparent. He allowed these people to defend Prop 8 but claims they don't have standing for an appeal. Granted, they did a lousy job of defending Prop 8 but the idea that SSM is mandated by the Constitution is so ludicrous that I sympathize with Cooper's claim that Prop 8 needed no defense. Archon Walker should have dismissed it; instead, he placed his seer stone in a hat* with a copy of the Constitution and located a "right" to SSM to the left of the emanation of the penumbra, written in invisible ink.

Over at Volokh Conspiracy, Orin Kerr asked SSM advocates when the Constitution began to require it. I love that question because SSM advocates come off as vapid no matter how they answer it. If they say it always has (or date it to the ratification of the 14th or some other amendment) then one can reply, "So, you know the Constitution better than the people who wrote and amended it?" If they give a recent date one can attack the legitimacy of judges conjuring "rights" out of thin air. For that, I don't think one can do better than Byron White's dissent in Moore v. City of East Cleveland:

The Judiciary, including this Court, is the most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or even the design of the Constitution. Realizing that the present construction of the Due Process Clause represents a major judicial gloss on its terms, as well as on the anticipation of the Framers, and that much of the underpinning for the broad, substantive application of the Clause disappeared in the conflict between the Executive and the Judiciary in the 1930's and 1940's, the Court should be extremely reluctant to breathe still further substantive content into the Due Process Clause so as to strike down legislation adopted by a State or city to promote its welfare. Whenever the Judiciary does so, it unavoidably preempts for itself another part of the governance of the country without express constitutional authority.

*This was originally posted to a forum populated by former Mormons.


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