Every time a court gives a controversial decision I look in vain for signs of a person with intellectual integrity who says, “This is a bad law that should never have existed, but the court was right to uphold it,” or, “This is essential law that the Constitution should not prohibit, but the Court was right to say that the Constitution does prohibit it.”
When the California Supreme Court upheld a voter-approved initiative to ban gay marriage, many people standing before the court shouted “shame on you.” In other words, they asserted that the Justices did something wrong – something for which they ought to feel shame.
They made this statement even before they read the opinion of the Court. All they knew was the outcome of the decision. They had not looked at any of the reasoning behind it. Yet, still they asserted, in full arrogance, that their interpretation of the law could not possibly be in error and, if the California Supreme Court said something different, we are justified in assuming the mural culpability of its members.
The people who should feel shame are the protestors, not the justices. Their showed the world an amazing amount of arrogance and self-importance – a level that a decent person would never ascribe to.
The decision in this case hinged upon whether the voter-approved initiative was a Constitutional Amendment, or a Revision. Revisions have to go through the legislature, whereas Amendments can be approved by the voters.
So, what determines whether or not a particular change is a Revision or an Amendment?
To most people in California and onlookers around the world, there is a simple test. "If I believe that the legislature is more likely to give the results that I want, then a particular change is a revision and requires legislative approval. If I trust the people to give the decision I like then the proposed change must be an amendment."
This is absurd on its face. Yet, the vast majority of Californians appear to embrace this absurdity. At least, they find an amazing degree of similarity between what the law actually says and what they want the law to say. This amazing degree of overlap is best explained by saying that people are using what they want the law to say as their measure of which interpretation is correct.
The degree to which people are basing their interpretations of the law according to what they want the law to say is simply too obvious to ignore. We would be foolish to think that the correlation between those who WANT the decision to come out a particular way and those who think that the law actually supports that decision is merely a coincidence.
This is what the Bush Administration did in order to justify its invasion of Iraq and the torture of prisoners. It went to the Justice Department and said, “This is what I want the law to say, so you job is to find an interpretation consistent with that desire.” Gay marriage proponents acted just like Bush did. They want the law to say something in specific, so they insist that the interpretation that fits their desires must be the correct interpretation.
Yet, in the manner befitting of hypocrites, they condemn the Bush Administration for doing just that – for interpreting the law only to their own desires. In fact, many of these gay rights activists insist that Bush Administration officials who interpreted the law to fit their desires should be prosecuted as war criminals.
Yet, they prove themselves to be the same types of people – those who determine what the law says by looking first at what they want the law to say.
As for me, I am going to do something radical and unheard of. I am going to reserve judgment until after I have read the decision. In reading the decision, I am not going to judge the results by whether or not they give the answer I like. I am going to judge the results according to whether or not the premises are true and the argument is valid.
Knowing that, as a human being, I am susceptible to interpreting the Constitution to fit my desires alone, I will be on the lookout for those tendencies.
In fact, it may be wise to begin with the assumption that the Constitution will come down on the 'wrong side' of a given law. This way, one can then look for evidence that overrides this presumption. By doing so, he or she might actually live up to their intellectual responsibilities.