The respondents could request special counsel, I suppose, instead of the attorney general. But they haven’t, that I’m aware of. So maybe they don’t think the brief is adverse to their interests. I don’t know. Or the governor could file a motion on behalf of “the people,” to request that the attorney general’s representation here be enjoined. Brown himself filed such a motion as governor against then-attorney general George Deukmejian, which led to the decision in Deukmejian v. Brown (1981) 29 Cal.3d 150, but that’s where the court said that the attorney general is not “the People’s legal counsel.” So I don’t know. It’s a weird situation.

As for whether his substantive argument in the brief is a good one, without consideration of who presents it—say, if it had been advanced by the petitioners instead—I just can’t agree.

Even knowing the canons of construction and knowing that constitutionalism is fundamentally a question of procedure, my libertarian sensibility just will not allow me to believe that these procedural rules are so much more durable than substantive rights that, even when the value and importance of the substantive rights is at the high end of the scale, the procedure must prevail. That we have a continuum of substantive rights, some of which are fundamental, while others, apparently, are not, with varying levels of scrutiny to review limitations and abridgments of those rights, tells me that, as you get to a certain point, something has to give.

And historically I see that, too, in the way that constitutionalism has developed by processes that are essentially extra-legal. That seems especially true in the constitutional tradition that is uniquely American. Had we been so zealous about maintaining procedural purity despite major substantive grievances, as you seem to advocate here, this nation might not look the way it does today, or even exist. Had the framers of the federal constitution had such a high respect for what is established, they would not have convened in secret and re-built the legal reality of the nation from the ground up, and we might not be here today.

I read a blog comment online somewhere, from some sarcastic wag, telling the attorney general that he should be looking for injustice in other ballot initiatives, to ask that they be overturned, too. That’s a ridiculous argument, oversimplified to the extreme. When the “tyranny of the majority” results in so many dollars worth of bonds being issued, the procedure is working sufficiently. When it results in the denial of a right that has been identified as “fundamental,” then there’s a more serious problem.

I would love to say that all rights are equal, but I don’t think they are. They can’t be. As Thomas Jefferson (I think) pointed out, your right to swing your arm doesn’t come past the end of my nose. We see the same principle at work in the constitutional limitations on the law of defamation, and in the whole body of First Amendment free speech law, with the differentiation between protected speech and unprotected speech, and the varying levels of scrutiny the Court has applied. Or in the exceedingly difficult problem of determining how far the right to free exercise of religion extends.

From what I can tell, there is an intractable problem in a society with both democratic and libertarian tendencies. My libertarian self wants to say that all rights are equal, and equally broad. But my democratic self wants to say, no, all rights are completely circumscribed by the existence of everyone else in my society, and their collective “will,” for lack of a better term, as expressed in the crude method of counting votes.

And you raise another extremely difficult problem, which is usually expressed in the canon of interpretation that later enactments supersede earlier ones. Thomas Jefferson also said that the earth belongs to the living. And when I’m doing my day-to-day work as an attorney, the canon of interpretation is an excellent way to resolve questions. And politically, I like what Jefferson said, because it implies great freedom of creativity for us, who are now living. We change as a society, our sphere of inclusion expands, we have different needs in property and business and domestic relations, and so on. But I have a hard time reconciling that with another abiding conviction, which I hold both because I swore an oath to do so, but also because I personally agree with it philosophically, and that is that the rule of law must be upheld. And isn’t law, fundamentally, a practice of saying, “We are doing this today because we decided to do it yesterday” or “We are doing this today because this is how we did it every previous day we can remember”? Or, as we lawyers enamored of Latin would call it, stare decisis.

You suggest that if the “people” or the “Legislature” enacted or approved a law doing away with stare decisis, that would be what it is, but procedure remains intact. But that seems impossible to me. The rule of law without a basic agreement, even a flexible one, that we will adhere to what we previously decided, is like a universe without gravity. (Or, as a high school buddy and I used to try and contemplate, like a universe without friction.) Without some consent that we will stick with the past, to some degree, we are no longer governed by the rule of law. We are governed by our whims—or, more likely, based on the numbers (there’s just one of me, and billions of everybody else), the whims of others.

The question then is: “To what degree should we stick with the past?” And that is the quintessential political question. And the longer I think about it, the more I think that all of law must reduce to political questions. Conversely, the answers to political questions, if we agree to the “rule of law,” necessarily become law, depending on who has the power to enforce their answer.

And procedure is just another word for political power. Procedure is the currency of law. Procedure is the rules for making rules. Control procedure and you control everything.

Democracy is a procedural rule that says: “If you get enough people to agree with you that you outnumber the people who disagree with you, then you can control the people who disagree with you.” And, as Winston Churchill observed, democracy is the worst form of government, except for all the others. But implicit in that observation is Churchill’s value judgment about democracy and all the other forms of government. Where does that come from? It’s not procedure. It’s not law. I don’t even think it’s politics. You can’t get involved in politics unless you have some pre-existing value judgment, even if it’s just that you believe yourself better suited to make decisions for others than those others are themselves. And even that presupposes a concept of what good decisions are.

Everything does fall back into philosophy. (And that view on my part is probably why I take the position I do, in this particular instance.) We can only have procedure, politics, law, and all the rest if we make value judgments about what we want. And those value judgments drive the law—they precede both the substantive and the procedural law. Which means that procedure is both the means of deciding whose value judgments should win and itself a value judgment about how we should decide whose value judgments should win. And, even more troubling, they are the value judgments of our predecessors.

If something has to give, I want to say that the earth belongs to the living and the value judgments of our predecessors ought to be overthrown. But what does that mean for the rule of law? Obviously, we can’t just overthrow any old value judgment of our predecessors. Some things have to be valued more than others.

You ask: “What good is a Constitution if it can be decided by subjective opinion which rights can be ignored?” But I’m asking the same thing—the difference is whose subjective opinion.

I don’t think reliance on procedure makes the outcome any less “shady,” one way or the other. This is one of those issues for which there is no just outcome. So long as rights are protected by a government that is controlled by its constituents, which are the public, the larger part of the public can use procedure to abuse the smaller part. But if rights are protected by a government that is controlled by some other, non-democratically selected group, the smaller part of the public can use procedure to abuse the larger part. Either way, somebody gets abused.

Unless, maybe, if we recognize that there are certain extraordinary situations when there is no clear path to justice through substance and procedure, then we agree that a particular body of people, part of whose job is to deal with extraordinary situations, is charged with making decisions anyway, despite substance and procedure. And that’s a constitutional court, I think, which must be a political court.

I don’t want it to be that way. But I don’t see how it can be any other way. Which is not to say I don’t think it’s all just an amoral, unprincipled, rudderless system, or that the rule of law is just a joke. To the contrary, I think the rule of law is a necessary, stabilizing force in society, both in the way it governs from the past and in the way it’s subject to present disputes about who controls it. If people stopped fighting over the meaning of law, and who should control it, and how it ought to work, and which people should decide which others have which rights, then we would be in a huge heap of trouble.

And, of course, the vast majority of what I’m talking about really only matters way out on the fringe, when you get these crazy issues like gay marriage that put our entire society into these weird paroxysms of confusion. When it comes to the ordinary stuff, day-to-day matters like “Should I pay my taxes?” or “How can I get custody of my child?”, for that stuff, the law is terribly useful, and it seems plenty well grounded in reality, without falling off the deep end into philosophy.

The State of California is the Respondent – on the defense. California wants to do something and Jerry Brown is their defense.

>>>I see his argument as getting to the basic integrity of the constitutional government,

I see Bush’s argument as getting to the basic integrity of the government and security of the citizens. I see his argument. It doesn’t mean I agree with it.

>>> to say that if something as important as the availabiliry of a fundamental right can be made subject to the whims of the people, it calls into question the viability of the basic function of a constitution

The basic function of the constitution are the operating instructions to a government. People are converting their engines to run on biofuel. The whole maintenance schedule, etc., is all shot to hell. The car still works. just differently.

>>>Just as the Court held, in In re Marriage Cases, that the constitution is the primary expression of the will of the people, over a code section

As it should be!

>>>I think Brown is arguing that there must be some provisions of the constitution that are primary.

So the argument, then, is “The will of the People is the Constitution. But the will of the People shall not be subsumed to what was the will of the People.”

Of course, what _was_ the will of the People was that the Constitution could be amended. Thus, Brown argues that the will of the founders should be supreme, except for when they claimed that they should not be supreme.

This is talking out of both ends. This also flies in the face of the history of jurisprudence. If a Constitutional amendment says that stare decisis shall not be considered, well, it’ll fly in the face of jurisprudence, but it’ll still be constitutional.

>>>I think Brown is arguing that there must be some provisions of the constitution that are primary

EXACTLY! Bush thinks that the powers of the executive branch should be superior over piss ant things like the 4th Amendment, judicial review and the will of the People. Of course, when the will of the People IS on his side, it is his triumph.

From a procedural basis, they are doing the same thing. Mirror images doing the same steps in different directions. The underlying issue is abuse of power, and willful abrogation of sworn duties.

And note – this has never, ever been the case.

Further note – this is the essence of a political question. Judges do not (we shall see if that will change to “should not”) have the authority to decide which amendments are enforceable.

>>>Which I think must be true.

This saddens me. What good is a Constitution if it can be decided by subjective opinion which rights can be ignored – particularly with the longstanding doctrine of “equal dignity” of Constitutional provisions. I’ll paraphrase Orwell: “All Constitutional provisions are equal but some are more equal than others.”

>>>When two principles collide, as here, both can’t prevail.

That’s the same as an argument that Senators must still be selected by State Legislatures. Article 1, section 9 of the federal Constitution reads that senators from each State are “chosen by the Legislature thereof.” Yet, the 17th Amendment clearly conflicts with that, because the Amendment superceded it. And a fundamental rule of construction is that, all else being equal, the more specific will dominate. You know that, Peter.

>>>Which I think must be true.

Me, too. But only in the world of politics, philosophy, etc. Not in law. Legislatures overrule judges all the time (just check out the notes for Civil Code section 1102 about why subsection (c) was added!) It happens frequently.

>>>When two principles collide, as here, both can’t prevail.

There are three solutions to this problem: (1) neither should prevail; (2) the one that is more specific should prevail; or (3) the one that supercedes should prevail. Option 1 is unworkable. Option 3 does not apply, since it disrespects “equal dignity.” Option 2 does work. It is more specific and not open to reasonable differences in interpretation. It means what it says. It modifies Art. 1, Sec. 1 in a sense – so long as one assumes that the court was correct in the Marriage cases. The People said the court was not correct.

Again, from a personal philosophical and political standpoint, I applaud the substantive position Brown takes. I think it SHOULD be the law. I also believe that I am sufficiently enlightened enough to know that I know what it best for me, and me alone.

>>>I don’t see how Brown is selling out his client.

If I ever find out you have briefed a position deliberately and willfully adverse to your client, I wil hunt you down. ;o)

>>>I think he’s doing exactly the opposite.

He isn’t doing his job by attempting to convince a court that not only is his client wrong, but so is established jurisprudence.

He’d be doing his job if he was a legislator. Or a lobbyist. Or a policy advisor. Not as an attorney.

>>>But maybe it’s an issue that’s susceptible to differing, reasonable interpretations.

Agreed. Like Brennan, you are not always wrong. Like Thomas, I am not always right.

I simply think that the emotional nature of the issue – and your laudable support for the rights of homosexuals. I believe that that the “will of the People” is overused drivel when that will conflicts with the Constitution. I’ve always said, “Don’t like the Constitution? Amend it.”

And the bastards went and did it, and did it the right way.

I would much prefer the wrong result to occur with proper procedure than see the right result achieved through shadier means. Brown seeks the right result, in my mind. I have merely lost respect for the man and would like to see him resign or otherwise relieved of his position.

I’ll leave with a quote by Learned Hand:
“For myself it would be most irksome to be ruled by a bevy of Platonic Guardians, even if I knew how to choose them, which I assuredly do not. I would miss the stimulation of living in a society where I have, at least theoretically, some part in the direction of public affairs.”

The People still have a say.
I hope…

Let’s have a beer this weekend and I’ll tell you what else to do with that case, lest Erin be cross with me. (She is the Court, the People, executive and legislative.) Any man who has been married knows full well that rights and freedoms are subject to arbitrary change without notice.

What I’m saying is that Brown argues that all amendments are not equal. Much like a pharmacist deciding for himself which meds are the work of Satan.

Politically I agree with Brown. In fact it hit me – Brown inherently states that it is a political question that he wants the Court to decide against his client.

That’s not good.

You make an interesting argument, but I don’t think I can agree with it.

Correct me if I’m misreading you, but I think you’re saying that by pitting the federal constitution against against the state constitution, and arguing that the federal constitution trumps the state constitution, Jerry Brown betrays California law in violation of his duties under Article V, section 13, of the California Constitution. (“It shall be the duty of the Attorney General to see that the laws of the State are uniformly and adequately enforced.”)

I’ve not read Brown’s brief thoroughly yet, but I have skimmed all of it and read some parts of it, and I am looking at it right now. I don’t see reliance on the 14th Amendment as a controlling source. But on pages 82 through 84 of the brief, it looks to me like he refers to the development and expansion of fundamental rights under federal constitutional law as persuasive authority to support his argument that fundamental rights under the California constitution are subject to similar development and expansion.

From what I can tell, that’s to support his argument that the “inalienable” rights under Article I, section 1, of the California Constitution include those fundamental rights later identified by the California Supreme Court. That fits with the In re Marriage Cases holding that, since sexual orientation is a suspect classification in California, a denial of the fundamental right of marriage to gays and lesbians must withstand strict scrutiny.

Then, at page 89 of the brief he writes: “If the initiative process were to encompass the unlimited power to abrogate fundamental rights, article I, section 1, would be stripped of all meaning.” And at page 90: “Where fundamental rights and suspect classes are involved, ‘strict scrutiny’ analysis is appropriate in order that the power of the initiative may be harmonized with the ‘inalienable’ guarantees of article I, section 1.”

So I read his argument to set up a tension not between California and federal law, but between two aspects of California law: the state constitutional guarantee of inalienable rights and the ability of the people to amend the state constitution.

Regarding the established procedure for amending the constitution, which you mention, I think his argument against that is not that federal law precludes it, but that another part of the state constitution precludes it.

And based on that reading, I’m not seeing a violation of his duty to see that the laws of California are uniformly and adequately enforced. Of course, even based on my reading, he has to make a decision on which way he’s going between the two aspects of California law that are set against each other in his argument, which is essentially a political decision. Whether making that political decision and filing a brief to advocate for it amounts to a breach of his duty as the attorney general for the state of California is not at all clear to me. I have no idea how frequently it occurs that an attorney general sees a conflict within state law and feels a need to make a political decision regarding which side to choose.

I thought I’d take a look on here and see what you are up to. Elegant prose as usual, but in viewing this, I couldn’t help but notice a bit of inconsistency in two of your posts.

In your post on December 20, 2008 – the one right before this one, you applauded Jerry Brown for his statement that makes a good point. For background, I voted against Prop 8. I find it personally repugnant. And I also believe from a philosophical and political perspective that fundamental rights – once identified – should not be left to a simple majority vote to eliminate them. That is my philosophical and political thought.

Then reason, law and duty enter into it. “Sworn duty” comes to mind. “Doing your job” comes to mind. “This is what you were elected to do, DAMMIT” comes to mind. Jerry Brown is the California Attorney General. It is his responsibility to zealously advocate for his client – the State of California. His paycheck.

Or shall I paraphrase, “And now you know that you can willfully abrobate your duty to represent the state and go along your merry way. Keep getting that paycheck, working that cushy AG job, going to meet and greets and feeling good about your conscience.”

He rolled over. Note – the 14th Amendment is NOT an issue in these cases. It’s the California Constitution only. If he feels that California law commands him to do something which conflicts with Federal law, then he has 3 options: (1) Obey his command under state law and do it; (2) Resign his office because he’s in an irreconcilably untenable position; or (3) Immediately refer the issue to the appropriate court to adjudicate the conflict.

He did none of the above. He sold out his client for personal reasons. The AG’s office decided to play a political game and made a moral choice that, even though the election was legitimate and complied with all laws (which was admitted), the Court should ignore it.

The AG’s office, in it’s responsive brief, argued that the Court should not let the people overrule it when it comes to what should or should not be a recognized right. (Check out his brief! He argues that Amendments to the Constitution should be reviewed under “strict scrutiny.” This is contrary to established procedure. He also argues that Prop 8 should be subsumed by Article 1, Section 1, which ignores the longstanding doctrine of “Equal Dignity.”

For moral reasons our AG is refusing to do his job. “This is not a rule of conscience, but a rule of conquest.”

Much like the pharmacist who loses his license for not doing his job, so should our AG. He deserves no protection.

We see another example in the Illinois Secretary of State, who usurps his ministerial duty into a discretionary function, at his own caprice, in refusing to acknowledge the fully legal appointment of Burris as senator. White does not want to sign it because it violates his personal feelings. Another willful abrogation of duties.

I’ll put it this way. If Jerry Brown was a legislator I would applaud him. A pundit? A legal scholar? YAY JERRY BROWN. But he is the attorney general and is SWORN to take this on. There seems to be better authority against the AG’s position that a court can strike down a valid Constitutional Amendment on the grounds that it

And that’s what it comes down to – duty. Peter – you raised your right hand and you swore an oath in public. Your duty is to advocate for your client – not to openly and notoriously advocate AGAINST your client. And he STILL has his job.

Brown is like a criminal defense attorney who submitted to the court, “My client did it. He claims that he was in honest and reasonable fear of his life and his wife’s when he killed the armed intruder after being shot himself. I believe the law of justification is wrong in this society. I futher believe that the prosecutor should refile this as a murder 1 charge, and I will fully brief the Court and jury as to why my client should be convicted of murder 1.”

Do your job. Whether a pharmacist, nurse, doctor, secretary of state or attorney general. DO YOUR JOB.

Once again, well put.