Posted by
TheChair on Tuesday, December 23, 2008 10:16:12 AM
California Attorney General Jerry Brown once again betrays California voters. His brief "in favor" of preserving Prop. 8 (normal marriage) actually tries to kill it off. It does defend against the silly argument that Prop. 8 is an unlawful constitutional "revision" rather than a permitted "amendment." But it Brown's brief goes on to call the marriage amendment unconstitutional on the old Progressive ground that fundamental rights can only expand in history. The People have no legitimate power to curtail them.
National Review Online has a good summary:
Here is how Brown summarizes his argument in his press release: “The
amendment process cannot be used to extinguish fundamental
constitutional rights without compelling justification.” Brown invents
this argument out of whole cloth: Further, how is it that a “right” to
same-sex marriage that the state supreme court invented just months
ago, and that even Brown’s brief concedes was not something “the
Framers [of the state constitution] contemplated,” should suddenly be
deemed a “fundamental” constitutional right?
Brown’s answer is
judicial activism on stilts: Any right that the state supreme court has
found to be protected as (in Brown’s phrase) “part of fundamental human
liberty” under the state constitution is ipso facto a
“fundamental” right. And, further, the fact that the court found such a
right means there is no “compelling justification” for its abrogation.
In Brown’s theory, there is no popular check on the judicial-activist
invention of rights.
With defenders of the people's will like Brown, we need no enemies.