George F. Will: Like NFL referees, judges should learn to throw the flag more on laws

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  • SCfan clearfield, UT
    Jan. 24, 2014 7:23 a.m.

    The main problem with judges in the American system is that the opinion of one person can supercede the opinion of millions of people. I'm not sure that was what was intended. Especially since judgeships are as much political as any elected office. The idea that political activists "judge shop" to get a favorable ruling on an issue is a bad element of our so called best system in the world.

  • Roland Kayser Cottonwood Heights, UT
    Jan. 23, 2014 7:34 p.m.

    @Mike Richards: Let me see if I understand your position. Suppose the state of Utah passed a law that said that only Mormons can be legally married in this state. Would Federal Courts be powerless to prevent this?

  • Unreconstructed Reb Chantilly, VA
    Jan. 23, 2014 4:41 p.m.

    An ironic op-ed from George Will, considering the steady barrage of pieces condemning judicial activism this past month in the DN. It would be interesting if Will would address the issue of SSM and the courts directly.

  • Shaun Sandy, UT
    Jan. 23, 2014 3:37 p.m.

    @mike richards. It is a dangerous position to say that the 14th amendment doesn't apply to marriage. Under your theory the state of utah could ban interracial marriage, could ban people who have no desire to have children to be married, could ban non religious marriages and so on.

    What about not allowing gay people to open a business? Owning a business does not technically fall under the us constitution.

    What about civil rights? Civil rights are not guaranteed under the constitution.

  • Mike Richards South Jordan, Utah
    Jan. 23, 2014 1:36 p.m.

    As I have already stated, I stand for the Constitution, not for an activist judge's interpretation of the Constitution and not 150 year old history that clearly shows that the Federal Government understood fully that it did not have authority to force a State to bow in submission to the Federal Government.

    The question that is left begging is "who has authority to create laws in the United States"? The Constitution tells us that the Federal Government has authority, but that the authority of the Federal Government is limited to the enumerated duties assigned to it. Marriage is not one of those duties. The Federal Government, according to the Supreme Law of the Land, cannot legislate marriage or issue marriage licenses. Those who tell us that lawlessness must prevail if it suits their purposes have no right to tell us that "Mormons" were persecuted. The 14th Amendment requires that a law be passed before equality can be addressed. The Federal Government cannot pass a law pertaining to marriage. That duty is left to the States - according to the Supreme Law of the Land.

  • Irony Guy Bountiful, Utah
    Jan. 23, 2014 1:18 p.m.

    Mike Richards, the federal courts have the power to strike down any state law that violates the equal protection and due process requirements of the 14th Amendment. The Court struck down the state law of Virginia that forbade interracial marriage, which obviously violated the 14th Amendment. When you say "what laws?" you are being disingenuous.

    Would you use the same argument in favor of Missouri's 1838 expulsion of Mormons? "Each of us has the right to move from any state we feel is oppressive," you say. Well, I guess the Mormons did that, didn't they?

  • Mike Richards South Jordan, Utah
    Jan. 23, 2014 12:53 p.m.


    Who has the authority to create laws? Is that authority vested in Congress or somewhere else? The Constitution tells us that Congress can ONLY legislate laws pertaining to the duties that we, the people have assigned to Congress. Where in the Constitution have the people allocated the duty to define marriage to Congress? There is NO clause in the Constitution that allocates the definition of marriage to Congress; therefore, according to the 10th Amendment, the definition of marriage is left to the States or to the People. That much is simplistic. No one who reads the Constitution can argue that point. Those who stomp all over the Constitution can argue whatever they wish to argue, but their point is mute.

    The 14th Amendment clearly requires that "laws" be established before equality under those laws can be determined. Congress has no authority to legislate laws pertaining to marriage. The States have that authority. The "laws" required by the 14th Amendment come from the States, not from a federal judge who violates the Constitution by legislating from the bench, which action violates the separation of powers. Judges cannot legislate.

  • Hutterite American Fork, UT
    Jan. 23, 2014 11:31 a.m.

    First off, not my idea. I quoted Clark M. Neily III, author of "Terms of Engagement: How Our Courts Should Enforce the Constitution's Promise of Limited Government". He's probably a more studied and learned chap than I. It's an idea which I heartily support, but I'm not alone in that support. It is an idea which cannot be twisted 180 degrees because then the basic premise would then be illegal according to laws which Congress has legislated and put into the US constitution, which i count on daily to protect us from the Utah people and legislature. The judge just pointed that out. States may handle the day to day chores, but federal law has to apply so that people are protected and recognised from one state to the next. I'd bet Utah still wouldn't recognise interracial marriages if it didn't have to.

  • gmlewis Houston, TX
    Jan. 23, 2014 11:32 a.m.

    The premise of the article is sound, but the comments have twisted the application of those principles. Marriage laws fall into the responsibility of States, and therefore there is uncertainty that Federal judicial review applies to them.

    Obviously, folks in Utah are highly focused on Marriage laws of late, but the vast majority of legislation falls in the area of commerce. Here, Federal judicial review is clearly warranted.

    The article focused on regulations of commerce in precept and example. It also pointed out that government is rarely "disinterested", and that much legislation is self-serving for a minority. I think Will is right that half a percent of legislation being overturned is essentially a deriliction of duty by the judicial branch of government.

  • Mike Richards South Jordan, Utah
    Jan. 23, 2014 10:22 a.m.

    Yes, I am serious about defending the Constitution as it was written, not as liberal judges rewrite it from the bench nor as liberal posters claim that it should have been written.. STATES have the right to legislate marriage. STATES issue marriage licenses. STATES are assigned that right and that duty by the 10th Amendment. The 14th Amendment required that equality be considered according to the laws. What laws? The Federal Government cannot legislate marriage. Legislating marriage is not an enumerated duty authorized to Congress. It is assigned to the States.

    Each of us has the right to move from any State that we feel is oppressive. The Federal Government has no authority to homogenize States into a national State.

    Those who think that the Federal Government has the right to "give" us rights had better spend some time asking themselves who gave that power and that authority to the Federal Government. The Declaration of Independence states that our Creator gave those rights to US, the People, yet many cower before the Federal Government and beg them for the right to be free.

  • Irony Guy Bountiful, Utah
    Jan. 23, 2014 10:02 a.m.

    Mike Richards, where was "justice" when the state of Virginia refused to let the Lovings get married back in 1967 just because Mrs. Loving was black? Are you seriously arguing that the 14th Amendment should not have been invoked?

    If so, my friend, you're the one with a twisted concept of "justice."

  • Mike Richards South Jordan, Utah
    Jan. 23, 2014 9:01 a.m.

    Simply by turning Hutterite's idea around 180-degrees shows its fallacy. If The Utah State Constitution had been amended to allow same-sex marriage and Judge Shelby had legislated from the bench that same-sex marriages were illegal, Hutterite would see immediately why legislating from the bench can never be allowed. Our Constitution protects us from judges who think that they have the right to define "rights". If Judge Shelby has the right to define a "right", who gave him that authority? The Constitution prohibits it. Article 1, Section 1 clearly states that we have only authorized Congress to legislate. Judges can determine whether a law is Constitutional, but they cannot write a law.

    Judge Shelby twisted the Constitution. He knows that the 14th Amendment requires him to defend equality under the "laws". He cannot write that law. Even Congress cannot write a law pertaining to marriage. That duty has been reserved to the States. A Federal Judge cannot change the Constitution to satisfy himself of those who cheer for him.

    Where was "justice" when a farmer wanted to eat his own wheat?

  • Hutterite American Fork, UT
    Jan. 23, 2014 8:34 a.m.

    "America is not "a fundamentally majoritarian nation in which the ability to impose one's will on others through law is a sacred right that courts should take great pains not to impede." America's defining value is not majority rule but individual liberty." Amen, brother. Judge Shelby is right.