Long Live the King?

By now, everyone has heard of Judge Vaughn Walker. I suspect that such notoriety was his intent from the beginning.

As you know, Vaughn Walker is a federal district court judge. As you know, he is also openly homosexual--by his own declaration, not by any investigative reporting. And, as you know, he is now the judge that will be known for declaring Article 1, Section 7.5 of the California state constitution--formerly known as Proposition 8--to be in violation of the federal constitution.

You probably also know that Judge Walker conducted this lawsuit hearing in some rather unusual manners for a federal court case...allowing for opening and closing remarks from both plaintiff and defendant, allowing for witnesses, ordering defendants' personal email messages to be made available for evidence (but not plaintiffs' email messages until ordered to do so by the appellate court). Perhaps the most outrageous decision he rendered--before August 4, anyway--was his decision to allow television cameras in the courtroom. Not only was such a decision unheard of in a federal case such as this, but its intent was obvious: it was to intimidate and silence the potential witnesses for those defending Prop 8.

All of that merely served as the opening act for what would prove to be one of the most predictable decisions in American history, the equivalent of predicting in which sky the sun would rise. As we waited for the better part of 8 months for this verdict, we discovered that it had all of the suspense of an announcement of water being wet.

Why, then, are so many decrying this decision regarding Prop 8? The reasons are legion: the notion that a society is not qualified to define something as fundamental as what constitutes a family and a marriage. That one man alone stands qualified to define for hundreds of millions of people what marriage is. That one man alone can determine the intent of 7 million-plus voters as they voted to define marriage. That one man can arbitrarily conclude that voters who vote their religious values do so out of a willingness to harm other people. That one man can say what does and does not matter when defining marriage. That one man would have the hubris to declare arbitrarily what is and is not necessary to raise children. That one man would have the audacity to think that he can define society's norm for the world's lone superpower.

But there is more to this decision than just the attempt to redefine marriage. It is something far more sinister than even I initially thought.

One branch of government has grown to become completely out of control, and nothing is being done to correct it.

Now I understand that any time one side loses in a court case, the cries of judicial activism and the like are usually heard. And I am certain that, had the verdict gone the opposite direction, the other side would have been using the same criticisms.

But let me take you back to what some of the founding fathers of this country thought about the judicial branch of government:

• Alexander Hamilton, in Federalist #78, believed that the judicial branch was "the weakest of the three departments of power," and that the "general liberty of the people can never be endangered from that quarter."
• Thomas Jefferson, in a letter to William Jarvis in 1820, wrote, "To consider the [Supreme Court] judges the final arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. They have, with others, the same passion for party, for power and...privilege. Their power is more dangerous, as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal."
• Thomas Jefferson again, in a letter to Abigail Adams in 1804, wrote, "The opinion which gives to the judges the right to decide what laws are constitutional and what are not, not only for themselves in their own sphere of action but the legislature and the executive also in their spheres, would make the judiciary a despotic branch."

What Hamilton envisioned--the judicial branch being the weakest of the three branches of government--has now shifted 180 degrees. The judicial branch is by far the strongest of the three branches.

What Jefferson feared--that the judiciary would become a despotic oligarchy--has now become reality. The definition of marriage has been ripped out of the public arena (where it belongs) and into the hands of a select few people in black robes. Nine people in 1973 legalized the taking of innocent life. Nearly 40 years later, nine other people will determine what constitutes marriage and a family, and one of those judges (Anthony Kennedy) will likely be the majority maker of those nine.

In the meantime, Vaughn Walker has stepped up and cast aside the convictions and beliefs of 7 million California voters, along with the millions of voters of 29 other states who voted to protect the definition of marriage. He alone knows better than those 7 million-plus people who participated in the democratic process provided by law.

He has created yet another judicial monarchy. He is king, we are his subjects, end of story.

Long live King Vaughn?

Laws need to be passed that will give the people some recourse to reign in judges who show such disregard for the rule of law. Legislators are the ones who can pass such laws. Legislators are elected by the people. So people need to elect legislators who see and understand the nature of the monster that is the judicial branch of government, and who will work to establish a working set of checks and balances that will bring this monster under control.

But what good does voting do, when judges steamroll over your votes anyway?

The answer is to become even more informed, even more educated.

Writing to William Jarvis, Thomas Jefferson said it best: "I know no safe depositary of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power."

We are going to continue to be plagued by this judicial oligarchy along with these individual monarchs, until we educate ourselves as to how to check and balance this branch. And that education needs to begin now.