Cultural Revolutions

Recent and Permanent

When the people’s fundamental law is ignored by the legislature, the remedy is typically to elect new representatives to set things right.  If the people’s fundamental law is transgressed by the courts, the correction is often not so easy.  Many judges are appointed for life and never have to face the electorate.  Others are appointed by special commissions and face a retention election after a period of years.  Only a few are popularly elected and face the people at regular intervals.

Thus, to combat judicial usurpations effectively, the people usually must resort to amendments to their constitutions.  The Founding Fathers thought that this power in the people was critical.  James Wilson of Pennsylvania, for example, averred that “the people may change the constitutions whenever and however they please.  This is the right of which no positive institution can ever deprive them.”

As evidenced in February, the Ninth Circuit Court of Appeals is not familiar with (or just does not care about) Wilson’s theories of popular sovereignty.  In Perry v. Brown, the Ninth Circuit upheld a federal district-court decision striking down California’s Proposition 8.  A 2008 ballot initiative, Proposition 8 was a response to a state-court ruling whereby judges found a right of homosexual “marriage” in the...

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