March 8, 2009

Judicial activism for the mugs

An exercise in partisan pandering

Jefferson County Circuit Judge Randy Koschnick describes an alleged instance of "judicial activism" for the hapless attendees at yesterday's Joe the Plumber Summit in downtown Milwaukee:
I saw the news this morning in California, [where] activism is reaching its peak. They're actually asking the Supreme Court of the State of California to declare their constitution unconstitutional! If that happens, it's over! I mean, then words have no meaning and government loses its structure.
Nobody has even suggested any such thing, but this sort of irrational scaremongering is typical of Koschnick's political maneuvering.

What "they" (the petitioners) are asking is for the Supreme Court of California to determine whether Proposition 8 is an amendment or a revision within the meaning of that State's constitution, as both are addressed or defined separately in that same document.

The ambiguity presents an unsettled question of California law — at least as it applies to the particular circumstances of Proposition 8 — and is therefore a perfectly appropriate inquiry to make of the court.

That question has absolutely nothing to do with "judicial activism." And, naturally, the assembled throng eats this pure nonsense up.

Others needn't have their intelligence similarly insulted.

Nevertheless, for the insistent masochists, herewith be the video.


Anonymous said...

Nice post. Mr. Koschnick is a perfect example of confusing people and stating what has not been said before. The only goal of his speech was to blabber on about activists like they're some kind of evil. Making stupid comments about them and simply lying. I very much dislike this man.

Take care, Jay

Terrence Berres said...

"Nobody has even suggested any such thing..."

If by Nobody you mean California Attorney General Jerry Brown.

illusory tenant said...

Huh? Brown is asking the court to uphold the constitution based on the "privileged status" of its art. I declaration of rights, whether Prop. 8 is an amendment or a revision.

To assert that anyone is trying to have the constitution declared unconstitutional is at the very least profoundly silly.

Besides, amendments to State constitutions have been invalidated in the past. No words lost their meanings and neither did the structure of republican democracy collapse.

Terrence Berres said...

If that's the AG's argument, it's just a different way of saying what Judge Koschnick said.

The Nevada Supreme Court did something similar regarding a constitutional amendment that required a two-thirds majority for the legislature to increase taxes, but was embarrassed enough to soon overrule that decision.

illusory tenant said...

Asking the court to uphold the constitution is just a different way of saying he's asking the court to declare the constitution unconstitutional?

It's not a different way of saying the same thing, it's an absurd way of saying a different thing altogether.

More to the point, we're talking about the arguments of the parties here.

Since when have the written briefs of parties served as an indicator of "judicial activism" on the part of a court that has yet said absolutely nothing about the case's merits?

Apart from, of course, the apparent skepticism toward the petitioners expressed during oral argument.

Terrence Berres said...

"It's not a different way of saying the same thing, it's an absurd way of saying a different thing altogether."

No, they're both ways of describing the "unconstitutional amendment" argument.

"More to the point, we're talking about the arguments of the parties here."

As Judge Koschnick also noted in your quotation of him. He used the words "If that happens" and I noted something along those lines has happened in Nevada.

illusory tenant said...

And "if that happens," then the amendment — or revision, or whatever it is — will fall according to the text of the CA constitution and the attendant case law as developed by the CA courts.

Which leads us to yet another question I hadn't bothered mentioning initially: What in the world does any of this have to do with Wisconsin or its Chief Justice?

Anyway, I get Koschnick's cute joke. But the fact of the matter is, CA's constitution is notoriously easy to amend — or revise, as it were — and if those amendments fall, it's because the constitution's core principles are more legally vigorous than the casual whims of the amending parties.

And should they fall, that is no implication of the unconstitutionality of the document's fundamental precepts, but rather an affirmation of their continuing vitality and application.

Terrence Berres said...

"...the casual whims of the amending parties."

Or the consent of the governed, as I, and apparently Judge Koschnick, would say.

Anonymous said...

Or the consent of the governed, as I, and apparently Judge Koschnick, would say.

OMG -- stop presses -- constitutional principles sometimes constrain the will of simple majorities! Won't someone think of the consent of the governed?

And rarely has the term "simple majority" applied more aptly than to the 7 million pious bigots who passed Prop 8.

Terrence Berres said...

"stop presses"

Then restart for the California Supreme Court press release?

"the identification of a right as 'inalienable' has never been understood to mean that such right is exempt from any limitation or to preclude the adoption of a constitutional amendment that restricts the scope of such a right. The opinion emphasizes that there is no authority to support the Attorney General’s theory." (pp. 4-5)