Something in common
The ruling by the 9th circuit about machine guns and the ruling by the MA Supreme Court that gays have a right to marry have something in common. They both are the right ruling for the wrong reasons.
In the former, it should be a second amendment issue and not a commerce clause issue. However, the commerce clause issue has the added effect of being applicable to other things, like growing you own pot, homemade porn, and making your own pesticides or whatever you can make at home.
In the latter, the SC changed a law and said write a new one. Huh? Judges can’t do that. Rule that a law is constitutional or not. Don’t write laws. Jebus!
November 18th, 2003 at 4:19 pm
In the case of the 9th, if the Congressional justification for the law was that big-wet-blanket “commerce clause” then it IS an issue.
November 18th, 2003 at 4:26 pm
SU
the Mass SC did no such thing. It invalidated an unconstituional law, then told the Legislature it had a set period of time to come up with a valid law. The court is not making law by any stretch of the imagination.
And, frankly, the iea that the court has no right to order relief completely invalidates the very concept of constitutionally protected rights. Constittutions protect the rights of the minorty form those of the majority in cases like these. Simply waiting for the majority to see the error of their ways and fix the law means that there is no rememdy. If there is no remedy, then there are no rights.
November 18th, 2003 at 4:26 pm
I agree that the commerce clause wet blanket is an issue that warranted being addressed. But the court totally disregarded that whole right of the people to keep and bear arms thing.
November 18th, 2003 at 4:38 pm
From the ruling:
We are mindful that our decision marks a change in the history of our marriage law.
Kevin said:
told the Legislature it had a set period of time to come up with a valid law
So it has changed a law and said write a new one.
The correct course of action (IMO) was to just strike down whatever law said homsexuals can’t marry. Not mandate a new one.
November 18th, 2003 at 5:22 pm
Uncle:
The correct course of action (IMO) was to just strike down whatever law said homsexuals can’t marry. Not mandate a new one.
Easier said than done. My understanding is that they would have had to strike down the entire marriage code to do that; not a great option. Besides, what’s the functional difference between striking down a small law that forbids homosexual marriage, and selectively striking down just that small part of that larger law that relates to homosexuality?
I’m interested to know what you think the job of the judiciary is. Is it simply to interpret and apply the law? Or is it also to interpret and apply the constitution? I hold that it’s both. And where the constitution and the law are in conflict, the constitution (be it state or federal) wins.
The only possible remedy in such a case is to strike down all or part of that law. Sometimes it’s clearly preferable to strike down only the offending portion of the law, rather than throwing out the proverbial baby with the bath water.
It surprises me that you would find such action by the judiciary to be out of line. And I fail to see how this constitutes anything remotely resembling “legislating from the bench.”
November 18th, 2003 at 7:19 pm
I’m not a lawyer and am not familiar with the legal nitty-gritty of the cases, but a couple of points:
1)on the gun case, since it isn’t entirely clear that there is a an individual right to bear arms as per legal precedence (something even Volokh concedes in that he used to be of the opinion that no individual right exists), I would assume that the defendant probably used the Commerce Clause in their defense and that’s probably why the 9th cited it.
2)In terms of the gay-marriage case, the only other recourse for the court would be to strike down the marriage laws. Rich wrote a piece once about de-legalizing marriage rather than legalizing gay marriage. However, since federal law recognizes marriage (in things like the tax code), you couldn’t strike down the Massachusetts marriage law without causing a great deal of havoc for a lot of people. Thus, in this case, is there really an alternative to legislating from the bench?
November 18th, 2003 at 8:37 pm
In the gun case, clayton cramer opined (link blogrolled to the right there) that the presiding justice (who was one of the judges who wrote a dissenting opinion in Silver v. Lockyer) intentionally did it because in S v L, the ninth had ruled there is no second amendment right to arms, which is of course a ludicrous ruling.
Thus, in this case, is there really an alternative to legislating from the bench?
Good point but the line must be drawn or it is kind of meaningless.
November 19th, 2003 at 8:31 am
Why on earth must the Left insist that every aspect of American life be tracked by some bureaurocrat?
How about we get the government OUT OF licensing and regulating “marriage”, “adults doing each other” or whatever you wish to call it!
November 19th, 2003 at 12:16 pm
Guy:
Not all of the Left. I happen to agree with you. Marriage is primarily a religious institution, and government has no business touching it. If you view marriage as a civil union, then it should be a contract, subject to the same contract law as any other contract, but with no preferred status granted.
November 19th, 2003 at 11:46 pm
Uncle:
Something I missed before:
[Ruling] We are mindful that our decision marks a change in the history of our marriage law.
[Uncle] So it has changed a law and said write a new one.
Umm, change in the history of … law != change in the law.
Anyway, as I said, if you’re arguing against the court’s right to do this, you’re arguing against their right to uphold the constitution.