Brown's anti-Prop. 8 argument gives power to judges, not people

WASHINGTON — Last November, 13,402,566 California voters expressed themselves for or against Proposition 8, which said that their state's constitution should be amended to define marriage as a relationship between a man and a woman. The voters, confident that they had a right to decide this question by referendum, endorsed Proposition 8 by a margin of 52.3 to 47.7.

Now comes California's attorney general, Jerry Brown — always a fountain of novel arguments — with a 111-page brief asking the state Supreme Court to declare the constitutional amendment unconstitutional. He favors same-sex marriages and says the amendment violates Article 1, Section 1 of California's constitution, which enumerates "inalienable rights" to, among other things, liberty, happiness and privacy.

Brown's audacious argument is a viscous soup of natural-law and natural-rights philosophizing, utterly untethered from case law. It is designed to effect a constitutional revolution by establishing an unchallengeable judicial hegemony. He argues that:

The not-really-sovereign people cannot use the constitutionally provided amendment process to define the scope of rights enumerated in the constitution; California's judiciary, although established by the state's constitution, has the extra-constitutional right to supplement that enumeration by brooding about natural law, natural justice and natural rights, all arising from some authority somewhere outside the constitution; the judiciary has the unchallengeable right to say what social policies are entailed by or proscribed by the state constitution's declaration of rights and other rights discovered by judges.

What is natural justice? Learned and honorable people disagree. Which is why such consensus as can be reached is codified in a constitution. But Brown's reasoning would make California's constitution subordinate to judges' flights of fancy regarding natural justice. Judges could declare unconstitutional any act of constitution-revising by the people.

In a brief responding to Brown's, Kenneth Starr — former federal judge, former U.S. solicitor general, current dean of Pepperdine University Law School — notes the absurd consequences of the proposition that "the people can never amend the constitution to overrule judicial interpretations of inalienable rights." Long ago, a California court struck down a Sunday closing law because "it infringes upon the liberty of the citizen, by restraining his right to acquire property." And a court struck down a law against scalping theater tickets because it violated rights "inherent in every natural person." By Brown's reasoning, judges could declare unconstitutional any constitutional amendment revising these judicial judgments.