The Cafeteria Plan for Defending the Constitution
In this case, the California Constitution. Over at the WSJ's Law Blog, Ashby Jones reports that the Pacific Justice Institute has failed in its attempt to force Schwarzenegger and Attorney General Jerry Brown to defend Prop 8.
Think about it: the voters of a state have lawfully amended their Constitution, and the executive branch responsible for upholding the State Constitution refuses to defend the voters' choice. Aren't they duty-bound to defend Prop 8, provided it is at least arguably consistent with the federal Constitution? Surely Prop 8 meets that minimum threshold, Judge Walker's activist ruling notwithstanding.
Should the executive branch (state or federal) treat the Constitution like a cafeteria plan -- picking and choosing the bits that they want to defend? Isn't that a dangerous precedent?
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Re: The Cafeteria Plan for Defending the Constitution
So, Adam, we have a situation in which Californians elect these politicians ostensibly to represent us. However, thanks to the state's initiative system, the voters have to decide all the really important stuff, anyway. Then, judges often rule against the initiative results, thereby nullifying the will of the people while the representatives are pretty much off the hook. It sounds a lot like a system that could create a broken state. Oh, never mind; it already has.
Re: The Cafeteria Plan for Defending the Constitution
Pat, I see that help is on the way! Jerry Brown is promising to appoint a "Clean Energy Czar" as soon as he is elected. I mean, who needs voters when you've got a czar?
Jun '10
Re: The Cafeteria Plan for Defending the Constitution
Adam Freedman:
Pat, I see that help is on the way! Jerry Brown is promising to appoint a "Clean Energy Czar" as soon as he is elected. I mean, who needs voters when you've got a czar? · Sep 3 at 10:25am
Especially one appointed by Brown!
May '10
Re: The Cafeteria Plan for Defending the Constitution
This does present a dilemma. The Governator and Brown don't actually believe in Prop 8. This seems analogous to having an attorney defending you in court who has a conflict of interest because he is friends with your accuser.
I think a better solution would be for the government to appoint some kind of independent counsel who actually believes in the amendment.
If the tables were turned, and the voters had passed a constitutional amendment to create gay marriage in a state where the governor is a traditional marriage supporter, would we be comfortable if he defended it in court?
May '10
Re: The Cafeteria Plan for Defending the Constitution
Adam, speaking of the executive branch and law, I didn't mean to exclude you from the history question I posed on Facebook:
Why does the President have the authority to appoint our nation's top lawyer, and thereby the capacity to influence the judiciary directly? Is the consequent politicization of the judiciary offset by advantages somehow?
May '10
Re: The Cafeteria Plan for Defending the Constitution
Aaron, the Senate has the advice and consent role for the AG, so I don't think it's that different from the appointment of federal judges.
Aug '10
Re: The Cafeteria Plan for Defending the Constitution
Mark Wilson: This does present a dilemma. The Governator and Brown don't actually believe in Prop 8. This seems analogous to having an attorney defending you in court who has a conflict of interest because he is friends with your accuser.
I think a better solution would be for the government to appoint some kind of independent counsel who actually believes in the amendment.
Apparently, in California the private group or groups that promoted a Constitutional amendment in the first place have standing in court to defend it, and that's what's been happening so far.