Panundrums, Populism, Priests, Polemics, Propositions and Constitutionalism.

California’s Supreme Court has just rejected the Proposition 8 referendum process prepared for California’s voters regarding the issue of gay marriage.  California’s voters, sustaining a jury role from time to time, are educated as to the concept of a proper question for the jury, and a proper question for the judge – as in a construal of law   Certain unpopular or popular measures in our constitutional (strong chartist) system do not go to the jury.  They may be biased by the popularity or unpopularity of the issue, and defeated in objectivity by the prejudice of the moment.  If they deal with the construal of  law and that includes the constitution, they do not go to the jury at all.  By this, constitutionalists protect the rights of minorities (actually the rights of all) from a trammeling by simple majority will and whim of the moment.

No minority should suffer the apprehension of the will of the majority alone.  They may not be in it.  That majority will may water away their specific and implied liberty rights.   By that rational and objective process the constitution protects the liberty imbued rights of all of us.

Were we to redefine liberty in the United States of America, it would be by Constitutional Convention or Constitutional Amendment only.

It is hoped that in cart wheel reinvention timesaving, the US Supreme Court merely lets the California Supreme Court decision stand (even though it is from California).

We may not as a whole like what others accept as privacy, individual safety, and equal rights from time to time, and though Congress and the legislatures of the States may seek to resolve it from time to time, we expect the Court to sustain it in reason and to construe it with modern times.  In past suppressed liberty, our grandmothers could not happily nor publicly show an ankle nor plan to vote.  Times have changed.  People may be protected in their rights and liberties as needed and determined by aspect, prospect,  and observation.  The Courts decide this here.

To allay foreign confusion, in America our Constitution divides the powers of Government by Montesquieu’s political science corollary of executive – legislative – and Judicial.  The legislative power alone, nor the executive power alone, nor the judicial power alone, without the full Constitutional process, can not strip away any minority rights by sustaining a mere legislative majority.

[California Proposition 8 would have reversed or barred any measures legally creating or permitting marriage as a union of two persons without sexual qualification .. see “Sex neutral marriage” elsewhere in this BLOG.]