This morning, George Skelton, noted political columnist and author of "Capitol Journal" in the Los Angeles Times, wrote a column titled "Brown and Schwarzenegger don't have to defend Prop. 8 — but they should." Skelton voted against Proposition 8, which banned gay marriage in California, but believes that the courts should decide its constitutionality. It is possible, although probably unlikely, that if neither the Governor nor Attorney General represents the majority of voters who supported Proposition 8 in the courts, then no one will have standing to defend that position and the courts will not address the merits. Hence, Skelton's view that the Governor or Attorney General should defend Proposition 8 in the courts so that the democratic process is preserved.
Skelton's column may be found at http://www.latimes.com/news/la-me-cap-20100826,0,6981919.column?page=1&track=rss.
I respectfully disagree with Skelton's premise, I think he has made debatable assumptions about the court's power of judicial review and mistakenly dismissed the role of the executive and legislature in interpreting the Constitution, and I therefore wrote him the following email:
Dear George,
I was a bit surprised by your column in today’s (Aug 26, 2010) Los Angeles Times that Brown and Schwarzenegger should defend Proposition 8 in the courts so that the courts have the opportunity to exercise judicial review.
My surprise is that you so casually accept, indeed proclaim, that judicial review is central to American democracy. You wrote: “Voters and legislatures sometimes pass laws that are unconstitutional. Courts were created, in part, to weed out those flawed acts.”
According to whom, George?
Not according to many of our most notable Founding Fathers. But, yes, according to Chief Justice John Marshall in his perhaps most famous Supreme Court decision, Marbury v. Madison.
Given your considerable knowledge, and I say that with the utmost respect, I am confident you are familiar with the history of judicial review, including the strong criticisms of any such concept by Thomas Jefferson, among others. The power of judicial review is not expressly found in the U.S. Constitution and the argument for it, that the Constitution is but another law (the Supreme Law) that courts are to naturally “interpret,” is highly questionable. Indeed, many devoted democrats (with a small “d”) have considered it a very undemocratic institution that robs the legislature of its rightful place. They hold that courts should indeed interpret laws but that the Supreme Law of the Land is not simply another statute but, rather, the founding political document that separates power among the three branches and does not give the Supreme Court the last word.
Also questionable is that the American President and Congress or, in the case of states, Governors and Legislatures, are without power and legitimacy to decide themselves whether a particular statute or other governmental action crosses the line and violates the Constitution. I know you concede that Brown and Schwarzenegger may decide not to defend Proposition 8 without violating the law, but the premise of your article is that this is in no way their appropriate role, only the courts may act to interpret the laws and the Constitution (federal or state). While extreme hypotheticals are not always “fair game,” were the people of California to outlaw marriage across ethnic or racial lines, would you take the same position, that the Governor and/or Attorney General should defend such an amendment in the courts? What of Proposition 14 from the 1960’s, nullifying the Rumford Fair Housing Act, which was held unconstitutional by the California Supreme Court and affirmed by the U.S. Supreme Court? According to Wikipedia (to be sure not always a reliable source), Governor Pat Brown supported the challenge to its constitutionality. Was that the wrong thing for him to have done, in your view?
It is true that judicial review has become part of the American political system and that criticisms of it which occasionally emerged in the 19th century have all but disappeared, except when hypocritical conservatives argue against what they call judicial activism or loose constructionism, all the while applauding judicial activism when engaged in by their own. But that doesn’t mean we should overlook the serious questions about judicial review that have been raised from the outset and its implications both for our democracy and the concept of separation of powers.
I’m not personally against the concept of judicial review perhaps because I grew up in the shadow of the Warren court with its use of judicial review to protect the individual and the minority against the potential (or actual) tyranny of the majority. But had I grown up in the era of Dred Scott or the conservative court of the early 20th century that ruled many state police power statutes unconstitutional, my view might be very different!
As always I appreciate your reflections even when I disagree with them. Thanks for your thoughtful commentaries. I also know that you’re a busy man who likely receives numerous emails so, if you made it to the end of this email, I thank you very much!!
Sincerely,
Donald A. Newman
