The real controversy about Proposition 8: why should judges overturn the will of the electorate?
(Telegraph) -- by Gerald Warner --
We the people – D’oh!” Or, democracy, shamocracy! Whatever happened to that quaint, old-fashioned arrangement favoured by Western democracies, whereby the electorate – in America solemnly personified as We The People – cast its majority vote for something and its will was respected and implemented? Today, that formerly sovereign will is simply overruled by the oligarchy of the liberal consensus whenever the popular vote collides with received progressive opinion.
In Europe, it is done by requiring national electorates to vote again, whenever they have cast their suffrage in an unenlightened (ie anti-Eurofederalist) direction. In the United States, formerly the most powerful democracy on earth, the popular will is routinely overturned by judicial activism. The current situation with regard to Proposition 8, the ban on same-sex marriage in California, is a classic example of this abuse. That a District Court judge should have the power to overrule the California Supreme Court may be a juridical conundrum: more important is the notion that he should have the right to overrule the declared will of the electorate.
Much speculation in America now focuses on the likely tortured path of this issue to the Federal Supreme Court, with liberal lawyers lauding the supposedly “fact-based” character of Judge Vaughn Walker’s ruling against Proposition 8, anoraks weighing up the current liberal/conservative composition of the Supreme Court, the likely direction of the swing vote of Justice Anthony M Kennedy and similar arcane topics. The elephant in the room is the increasing subversion of the popular will by judicial activism...
On Proposition 8, the bottom line is: the electorate voted for it. If that is not good enough, a lot of Americans must be asking themselves why they went to so much bother to get rid of George III. An irony of this specific conflict, on which Democrats do not care to dwell, is that there is strong psephological evidence that the ban on same-sex marriage in California passed because of the socially conservative instincts of the additional black voters who had been persuaded to register by agencies such as ACORN, to vote for Obama. So, they voted for a candidate they found culturally sympathetic and against a novelty they found distasteful.
The lobby for same-sex marriage may have made a serious error of judgement in choosing to make this particular law in this particular state a test case. It is a mistake because, in this instance, they are not trying to reverse some local statute of years’ standing, but to negate the majority will of their fellow citizens, recently expressed at the ballot box. It puts the ultra-liberal lobby squarely in confrontation with the defining act of the democratic process: the secret ballot of a universal suffrage electorate.
It also seeks to subvert states’ rights, the issue on which the American Civil War was fought and which is increasingly coming back into focus, as the culture of the liberal east coast relentlessly attempts to override the core values of the more conservative states. Obama’s healthcare legislation is another issue that has lately reinvigorated that antagonism. Modern history and politics are full of startling examples of old fault lines suddenly reopening: who, 50 years ago, would have forecast, for example, that Yugoslavia would fragment so violently? America’s so-called “culture wars” reflect internal tensions and divisions against which the fabric of federal unity may not be indefinitely immune.
Yet the increasing marginalisation of voters’ powers goes far beyond the United States. A referendum result such as Proposition 8, if voted through in Europe, would simply have been negated by the EU, forcing the offending electorate to think again. The major political phenomenon of our times is the increasingly debilitated condition of democracy...MORE...LINK