Thursday, May 29, 2008

Next Time, We'll Talk About Religion

About once a week I have breakfast at my local neighborhood place where all the regulars spend each morning reading the paper and discussing local politics. It can get loud, and I tend to prefer peace at 7 in the morning, but it's nonetheless an occasionally fun way to start the day. This morning's conversation veered away from the local, and I spent almost an hour engaged in what I'll call a dialogue (it was really more of an argument) about judicial power. Specifically: do judges legislate from the bench?

The point of departure was the judicial decision in California to override the referendum passed by voters that outlawed gay marriage. My friend said that this was an instance of misuse of judicial powers and was in effect "legislating from the bench." I said that he only felt this way because he disagreed with the decision. The judiciary interprets the law. When we agree with the interpretation at hand, justice has been served. When we disagree, we feel that power is being abused and say things like, "That's just legislating from the bench."

I've been reading Nixonland, Rick Perlstein's engrossing account of the fracturing apart of the Democratic Party during the 1960s and the rise to power not only of Nixon, but of cultural conservatism and the Republican right. I pointed out that the very notion of judicial abuse of power was invented by Nixon's advisers as a way of turning legal and constitutional issues into moral issues. Civil rights? I'm for them, but not for legislating from the bench. Affirmative action? Good thing, but the people, not the courts, need to make these decisions. Abortion? Agree the Constitution says it's illegal or else you're legislating from the bench.

His counterargument is that courts should not be able to overturn the will of the people. If a referendum is passed, the voters want it, and it therefore must be upheld. I said that referendums must adhere to state and federal law, that courts are only ruling on points of law, not points of legislature. And around we went.

So, having spent the better part of a week immersed in the history of "positive polarization" and the conflation of the legal and the moral, I ask: am I crazy?

1 comment:

tunsie said...

religon and politics r things i do not choose 2 get into alcohol infused or 4 that matter alcohol-less infused debates over.that being said 4 once in my life and this is a rare instance.I choose not 2 comment,thank u.tunsie.tunsie.tunsie. I luv u el xoxxooxoxxoxoxoxo