California’s chief justice: No, really, the people want gay marriage
The Los Angeles Times carries a sympathetic interview with Ronald M. George, a Republican and chief justice of the California Supreme Court, which this week overturned the state’s ban on same-sex marriage. The vote was 4-3, with George providing the decisive fourth vote. Key quote:
Rather than ignoring voters, “what you are doing is applying the Constitution, the ultimate expression of the people’s will,” George said.
But enforcing the people’s will is not what the court did here. You could argue that the court didn’t have to take account of the people’s will, or that the people’s will about same-sex marriage is illegitimate. (For a discussion of constitutional legitimacy, see Restoring the Lost Constitution by Randy Barnett.) But if the people’s will is the basis for law, and if their will is measured by statutory or constitutional text, then you can’t argue that California law required, or even permitted, the result the court reached.
Rather than admit what they’re up to, our judges often pretend to be mere technicians who mechanically apply the law, as written by others, to the facts of a case. Were our judges candid, the public might notice the ungrounded and antidemocratic nature of constitutional decision-making.