When an attorney is fortunate enough to become a judge, that attorney must first take an oath. Article 20 Section 3 of the California Constitution provides:
“Members of the Legislature, and all public officers and employees, executive, legislative, and judicial, except such inferior officers and employees as may be by law exempted, shall, before they enter upon the duties of their respective offices, take and subscribe the following oath or affirmation:
‘”I, ___________________________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States and the Constitution of the State of California against all enemies, foreign and domestic; that I will bear true faith and allegiance to the Constitution of the United States and the Constitution of the State of California; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties upon which I am about to enter.”‘
Basically, judges promise to follow the law. Nowhere in the California Constitution does it provide for judges to make up the law as they go along. If you read the California Constitution, you will see that the Legislature is given the power to make laws. You will also see in the California Constitution provisions authorizing certain power to the courts by the Legislature.
The power to govern rests with the People of the State of California who then elect officials to vote on laws on their behalf. There are some state and federal judges who have forgotten this rule. If California judges were meant to have the authority to make law, it would have been written into the California Constitution. The same goes for federal judges.
There are specific ways to change the California and U.S. Constitutions and none of them authorize the courts to make the changes
It seems sometimes that the Constitution, whether U.S. or California, changes depending on who the judge is and whether you are the prosecution or defense. That’s the way it should be. Right? I’ll let you answer that.
I want to give an example and let you decide, but I will look to a different area of law for my point.
This past August a federal judge in San Francisco struck down Proposition 8. Proposition 8 amended the California Constitution to provide that marriage can only be between a man and a woman. For those who are not from California, Proposition 8 was placed upon the ballot for the people of California to vote on.
Proposition 8 was a lawful procedure to amend the California Constitution. Whether gay marriage is right or wrong is not the subject of this blog. What is the subject is whether the judge used lawful means to strike Proposition 8.
Let’s look at what the judge used. He said in his opinion the amendment to the California Constitution “creates an irrational classification on the basis of sexual orientation.” Is that California law or Federal law? If no, then where did the judge get the authority?
Because this is in Federal Court, this is a federal question. The judge would first have to look at the plain meaning of the U.S. Constitution to determine whether Proposition 8 is in prohibited. Because there is no language that allows this judge to use the above statement, we now have to go to the next step.
Was the INTENT of the Constitution to provide a rule such as this? When intent is look at, the judge would see what the intent was of the people who wrote the text. If there is no clear indication one way or another of whether it was the intent of the framers that the above stated rule is to be used, then we go to the next level of authority. Judicial Precedent.
A judge would look to see if a prior court has addressed the particular issue. This is called legal precedent. If this issue has never been decided before, then the judge may look at the history or traditions of American society.
In a history or traditions argument, the judge would have to ask; “Is gay marriage deeply rooted in the traditions of American society?” This type of authority or argument has been used by the U.S. Supreme Court in determining fundamental rights. This type of authority would also be considered legal precedent.
When looking at the different types of authority the judge in the Proposition 8 case could use, none of them would give him the authority to make the new law he made. “Irrational classification?” Who is to determine what is rational and what is irrational? The judge or the majority of society?
Did the judge follow the law in this case or did he make law? Read the decision for yourself and then you decide.