Be warned brother and sister states, one of your fairest brethren has been murdered by the “judicial” branch of these United States of America and by the elitist political caste. I will tell you of the death California’s constitution; each of you must mourn your own.
The preamble to California‘s constitution was bolder than the preamble to the United States Constitution. It read: “We, the People of the State of California, grateful to Almighty God for our freedom, in order to secure and perpetuate its blessings, do establish this Constitution.” Section 1 of the first article of California’s constitution was more noble still: “All political power is inherent in the people. Government is instituted for their protection, security, and benefit, and they have the right to alter or reform it when the public good may require.” This was the tone of those who have had enough of pretense and hypocrisy. These were grave and solemn declarations. They were the words of men and women who have had experience in the great and ongoing struggle for liberty. The rest of California’s constitution once lived up to these brave words. (They’re only paper now. Their life is gone. Cry for yourselves. We are all next.)
For these very self-evident reasons, any refusal by four California judges to enact Proposition 8, by describing it as a revision, would have been to drastically alter the heart of California’s constitution. The simple words of this historic constitutional amendment were, by comparison to its preamble, very ordinary: “Only marriage between a man and a woman is valid or recognized in California.” Of this California’s Supreme Court judges, despite their personal reservations about Proposition 8 as a Constitutional Amendment defining marriage, had no reservations. Ultimately, in a 6-1 decision, California’s Supreme Court recognized the state they lived in. It’s a state based on the will of the people. Apparently, such a state of affairs was too free of tyranny for our Federal Courts, so they killed it.
The Constitution of California is or tragically was a living document, but its life was not ultimately in the hands of a Supreme Court, and its breath did not wait on a two thirds majority of the state legislature. No, California’s constitution was specifically designed to live and breathe with the people of California. Nor was this done for light and transient causes. California’s constitution was borne from the lessons of the undergraduate school of Error and graduate school of Painful Experience in this Land of Opportunity.
Of all the states in the union, California has the most experience with constitutions. California drafted its original constitution in coordination with a military proclamation shortly following the Treaty of Guadalupe Hidalgo. California then redrafted its constitution only thirty years later. It was in this second draft of its constitution that California began its loathing of political authorities and its love of the initiative and referendum process. Finally, after years of committee analysis, in 1966 California used the mechanisms within the 1897 draft to significantly revise its constitution. This it did with a constitutional convention and approval of the electorate. Ultimately, the revision committee completed the final part of its revision process with a series of tailor made ballot initiatives(CPS 6). Hence, if California’s constitution is one of the most liberal in the union, it is a political path based, not on naïveté , but on experience. In other words, if California gives greater authority to its electorate than any other state, it is because California has learned from its history. Its institutions recognize that those in authority are often as impervious to truth as they are imperfect in character. California’s limits on its Supreme Court Justices, as set out in terms of recall and elective terms, is not done without a very clear understanding of the challenges to freedom that arise in every generation, even in nations governed as constitutional and democratic republics.
This wonderful political document based on the trials and experiences of a concerned, highly educated, and informed citizenry was murdered by the Ninth Circuit Court of Appeals. Such a document as California’s was not seen fit to live. The other 49 of our brother and sister states be warned!
The problem with the founding father’s notion of an independent judiciary is that our forefathers benignly believed that the check on judges would be the laws and the constitutional documents they embodied. California discovered that such a check was not always convenient. While, on one hand, California gives its chief justice tremendous powers over the interpretation and the culture of interpretation that surrounds California’s laws, the consequences of its painful experiences with thepowerful forces of large business interests during the Civil War period left the people of this state with an extremely sober view of every element of representative government, including the judiciary. California’s judiciary is one of the least independent in the nation. While judges are appointed by the governor, the judges are subject to reelection every twelve years. Furthermore, they are subject to recall at any time by way of the recall petition process.
In the United States Constitution five judges closely divided with four others in the interpretation of the federal constitution plus the silence of the legislature can equal, in practical terms, via stare decisis, an amendment or a revision or of the constitution. Of course the more devided the judiciary, the more divided the legislature, so, in the course of time, judges have often changed the constitutional rudiments of our federal laws. In California, though, the people must also remain silent for a judicial opinion, an interpretation of the law to become, via stare decisis, an amendment to or a drastic revision of the California constitution. Such a state of liberty could no longer be tolerated by the judicial branch of the United States of America, and so California’s Constitution was buried.
The Ninth Circuit court cannot take all the credit for this murder. The final stab in the back came from California’s attorney general who refused to appeal the people’s decision to the United States Supreme Court. Nor can the wounds inflicted by the Supreme Court of the United States be ultimately named as the cause of California’s death, for that court cannot be completely faulted for failing to hear a case not brought by due process to its steps; but the court provided no remedy. Where were the people of California to go for redress of their injuries? Twice they voted down gay marriage in their state. They even voted to amend that document. Is this liberty?
Sadly, the death blow to California was a knife in the back. It came from her own elites. They ripped with treachery at the very heart of the State Constitution when they did not fulfill their oaths, for with this trivial legal maneuver the elites completely avoided the will of the people of California upon which the entire constitution stood. Who will impeach the attorney general? Who will bring that case? California’s constitution was betrayed to its death by special interests over gay marriage. Could California have survived the many wounds the federal courts ripped through the fine fabric of her laws? Who knows?
In the matter of Proposition 8 and Proposition 22, Californians were not silent. They thought long and hard; twice Californians have clarified the definition of marriage. This itself was an altogether silly exercise forced on them from “above,” but it was, nonetheless, a gracious and constitutional exercise. All those who opposed that definition ought to accept the verdict in the gracious spirit in which it was legally and duly offered. The definition of marriage Californians have declared doesn’t harm anyone, and it does apply equally applied to all. Homosexuals may also get married to one member of the opposite sex, just like every other Californian. Californians do not hold anyone’s sexual orientation against them. The people of California have never been perfect, and they are not now. California’s constitution though, isn’t bad. Other states ought to follow California’s example of liberally granting the final say and authority to the people. After all, where do all constitutions that are worth the ink originate? ALL of that is gone now. We are in the age generations of Californians, in their wisdom, sought to avoid. We’re in the age when an elite politician, not doing the will of the electorate, can side step not only the will of a decade of California’s elections, but that lone politician can eviscerate the very heart of liberty that generations of Californians citizens conferred on their descendants.