I want to show you some quotes from the Federalist Papers, whose authors (John Jay, Alexander Hamilton, and John Adams) had strong hands (i.e. Founding Fathers) in shaping the U.S. Constitution which supersedes a state constitution.  Most people forget about the Federalist Papers.  They were written under pseudonyms and published in various states as reasons for why the new Constitution should be approved by the 13 colonies and used in place of the Articles of Confederation.  Most people today decry same-sex marriage and the “tyrannical judiciary” and ask what the Founding Fathers would think, as surely this was never their intent…oh really?  In these select quotations you’ll find the words “tyranny of the majority,” not “tyranny of the judiciary.”  The Federalist Papers are some of my favorite historical American documents because they say what the Founding Fathers thought and what they hoped to achieve with the adoption of the Constitution.  Let’s begin:“Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure. There are but two methods of providing against this evil: the one by creating a will in the community independent of the majority — that is, of the society itself; the other, by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable.” ~ Federalist #51

In the case of California, the majority was united; the common will was to ban same-sex marriage, and that is why there is also a Supreme Court: to prevent mob rule from suppressing minority rights.

“[T]he public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority.” ~ Federalist #10

The public good in the case of California is the advancement and protection of civil rights for all. I hardly doubt anyone would say that civil rights go against the public good. And the majority was overbearing and decided how to define civil rights, something that is entirely unjust.  The California State Supreme Court may have upheld Prop. 8, but when it hit a federal court under Judge Walker, I’m sure he would have been equally familiar with this notion.

“Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger; and as, in the latter state, even the stronger individuals are prompted, by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves; so, in the former state, will the more powerful factions or parties be gradually induced, by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful.” ~ Federalist #51

The citizens of California are all under the same state and federal constitution. While many may disagree with same-sex marriage, that does not mean they should be able to deny that civil right just because it conflicts with PERSONAL religious conviction.  This quote directly supports Kellyanon’s post about the Constitution: one may disagree with gun laws, but the Constitution protects all parties with the 2nd Amendment.  This applies to unpopular minority groups, i.e. gays and lesbians.

“But it is not with a view to infractions of the Constitution only, that the independence of the judges may be an essential safeguard against the effects of occasional ill humors in the society. These sometimes extend no farther than to the injury of the private rights of particular classes of citizens, by unjust and partial laws. Here also the firmness of the judicial magistracy is of vast importance in mitigating the severity and confining the operation of such laws. It not only serves to moderate the immediate mischiefs of those which may have been passed, but it operates as a check upon the legislative body in passing them; who, perceiving that obstacles to the success of iniquitous intention are to be expected from the scruples of the courts, are in a manner compelled, by the very motives of the injustice they meditate, to qualify their attempts. ~ Federalist #78

In this case, the California Legislature did not even pass the proposition. It was the people in a show of mob rule.  Overriding the “will of the people” is overriding the Citizen-Legislator, and according to Federalist #78, the judiciary is meant to do just that: check the Legislature.

And finally:

”This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves…have a tendency… to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community. ~ Federalist #78

Many on the Prop 8 Proponent side argue that the court should stay out of the Prop 8 conflict because the will of the people is to ban same-sex marriage. However, the judiciary is a separate body for a reason. It watches these acts pass by popular vote and then passes judgment on their validity as laws. Proposition 8 seriously oppresses the minority, and thus the courts have a right as well as an obligation to step in and protect the minority from majority oppression.  For those who call for the impeachment of Judge Walker for “judicial tyranny,” there is a reason he is appointed, not elected, by those very same people.  Judges are meant to be immune from unrest in the populace.  How else can they make an impartial decision?

The Federalist Papers are quite important, and I wish more emphasis came to them in daily life.  We needn’t guess what the Founding Fathers would have thought: they already spoke when they drafted the Constitution as well as the papers published to promote its ratification.

NOM, the Right, and all other marriage equality opponents could do with another history lesson.



1 Comment

Leave a reply