Friday, 27 August 2010 00:00
In her letter of Aug. 19, Catherine Dillon expresses her concern that the judicial review of California’s Proposition 8 shows that our country is becoming “The United Judges of America.” She needn’t be worried; the courts are doing what they have been doing since 1803, when, in Marbury v. Madison, the principle of judicial review was established.
Considering some history will help us understand what’s going on. The 13th, 14th, and 15th Amendments gave blacks the same civil rights as whites. At the time, having separate facilities for blacks was legal. As late as 1896, the Supreme Court upheld the doctrine of “separate but equal.” But in 1954, the Supreme Court reversed itself and found that separate but equal facilities for blacks violated their civil rights. What had changed? Not the original intent of the legislators who passed those Amendments – they were long dead. And the words of the amendments certainly hadn’t changed. What changed was the meaning those words had for us. The decision was bitterly resented, with “Impeach Earl Warren” billboards in many places, but today, except among the most troglodyte elements, everyone agrees that it was the correct decision, and that our country is better and stronger because of it.
Notice that the people of affected areas were not asked to vote on “separate but equal.” Fundamental civil rights are not decided by a popular vote.
The question today is whether the Constitution requires gay and lesbian couples to be allowed to marry. That question will be eventually decided by the Supreme Court. In reaching their decision, the justices must decide what the words of our Constitution mean, not when they were written more than 200 years ago, but what they mean to us today.
Whatever they decide, the justices will not be changing the country into “The United Judges of America.” Rather, they will be doing what they have been doing for 200 years: telling us what the words of the Constitution mean.