Same Sex Marriage and "Judicial Activism"

On Wednesday, August 4 a federal judge voided California's ban on same sex marriage (proposition 8) declaring that it violated the due process and equal protection clauses of the U.S. Constitution. The issues tends to be a bit divisive and as one can imagine the reaction to the ruling has varied - but there is one narrative that I find especially troubling. On supported of Proposition 8 said this: "The whole nation is watching, and the whole nation should be quaking to think that a single judge sitting in California can reverse the will of 7 million voters."

This is a variation on a similar theme often raised after controversial judicial rulings - that judges should not act counter to the will of the voters or their elected representatives. I will defer to the judgement of Alexander Hamilton on such matters. In Federalist 78, Hamilton addressed this very subject:

Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the ground on which it rests cannot be unacceptable.

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.

Hamilton's point is clear - no act of law, whether approved by voters or representatives may violate the Constitution.

So who should determine what the Constitution means? The people? Their representatives? Again, Hamilton provides the answer:

The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body.

Interpretation of the law and of the Constitution is the sole responsibility of  the judiciary and if a law is found to violate the Constitution it does not matter if it was approved by 7 or 7 million voters - it is void. The same applies to any legislation enacted by the House and Senate and signed by a president.

Soon, the Supreme Court will likely be asked to consider whether the individual mandate included as part of comprehensive health reform violates the Constitution. The decision by the court to void the mandate would be significant as the health reform law did not include a severability clause - meaning that a decision to invalidate the mandate would likely invalidate the entire bill.

I will not presuppose what the court will decide - but I remain confident that the judges will do just what the are supposed to do - interpret the Constitution and uphold its will above all else.