Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote.

Thank you Glenn for continuing to hammer these false accusations of "judicial activism." Some will say that it has no effect, but I think that the more these arguments are clearly made, the more the Ron Paul Republicans will realize how far their views are from the rest of their party. It is also helpful to re-focus the argument on the real issue (rights) and not on red herrings (whether people like gay marriage or not).

In arguing with right wing colleagues recently, I asked what they would say to a law which more severely limited all gun ownership if it was supported by a clear majority of the population (as polls show us it is)? Of course that would be wrong, because the 2nd amendment guarantees a right no matter how much the alleged latte-sippers don't like it.

It seems analogizing the issue about policies they support is the only way to make any headway.

Especially in the political realm. They simply view each and every situation in isolation, and decide on a case-by-case basis how they'd like it. And want the law to reflect their personal predilections.

F'rinstance, can't tell you how many arguments I've had w/ "small-gov't" conservatives who, as non-smokers, have no problem w/ ordinances banning smoking in private business establishments.

What was that quote? Few people are capable of looking beyond their own perceived self-interest?

I can assure you that if the decision by the California SC was one with which they personally agreed then there would be no comment at all from them regarding it "overturning democracy" or whatever silly phrase they might employ.

This fact became obvious to me nearly two decades ago when I started researching and arguing drug policy. Even the most ardent drug warriors suddenly are struck with enlightenment about "harm reduction" policies when you argue for making alcohol illegal. They will immediately start making exactly all the same arguments about alcohol as you have been making about other recreational drugs.

They understand, don't let them fool you.

This argument about the "will of the people" is rather blatantly stupid. The vast majority of voters in my native state of Oklahoma and elsewhere in the South overwhelmingly supported racial segregation. So much so that I attended segregated schools for six years, until the passage of the 1964 Civil Rights Act, despite the Brown decision. Many people in the South probably still support segregation. Are these people also arguing that all of the civil rights decisions are invalid as well?

It seems analogizing the issue about policies they support is the only way to make any headway.

Nope, that doesn't work either in my experience.

As soon as they have done feeding all your own arguments back at you on the one policy they will go right back to arguing the opposite way on the policy they don't like.

At the end of the day legally correct jurisprudence based upon sound constitutional findings do not trump the objective of civil and criminal laws which is JUSTICE

The question is a simple did the california courts findings result in JUSTICE which is more paramount than the adminstration of civil procedure and basic civics..

Under the Canadian constitution, democratic governments can (with some exceptions) overturn for a finite period court rulings of unconstitutionality by invoking the "notwithstanding clause". One can argue for or against such a system. Wittes apparently would think the Canadian system is better. Fine. And he can propose amending the American constitution if he likes. But as Glenn says he needs to recognize that this is not the current US system. Dura lex sed lex and all that.

Many people in the South probably still support segregation.

I wouldn't be surprised if many of them supported slavery. In the days when slavery was allowed, the states that allowed it could easily show that it was supported by the majority of their voters. That didn't make it right.

It went unmentioned by Wittes, and thus by Glenn as well, but in case anyone would like to complain about "unelected judges" making law, make sure to remind them that California justices are elected, every 12 years I believe. Also, lest people argue about "liberal judges" run amok, six of the seven are Republican appointees.

I admit these are only distractions, and Glenn's main point, and the notion of Justice, are the more central ones, but it's good to be able to beat back the stupider talking points without too much work.

The Right, utterly bereft of any reasonable arguments for their policies, are once again resorting to another Straw Man argument in this case. As other posters noted, "Judicial Activism" is merely a code for decisions they dislike, and such specious nonsense is one of the thin reeds on which they plan to hang the 2008 campaign. I discovered this by reading the Kristol ball Monday. Since they know that their "base" doesn't even believe in the Constitution, preferring an amalgam of the Ten Commandments and Cheney's 1% Doctrine, it will be successful as far as it goes.

Similar Straw Man arguments abound throughout the right; Bush's "Appeasement" claptrap, the Wright "controversy," and perhaps most humorously ironic, the Washington Legal Foundation blaming the Recession on environmentalists, whom we all know have really been in the driver's seat these last eight years.....

The only opponent the right appears willing to fight is the one they've conjured up in their fevered imagination. Bring it on.

Why would judicial oversight be anymore inherently anti-democratic than executive vetoes?

Glenn quotes Wittes as saying:

The legislature has twice voted to extend marriage to gay couples -- and Governor Schwarzenegger has twice vetoed the bill.

So, if we consistently apply Wittes's logic, this should be evidence that the Governor was undermining democracy by blocking the careful negotiation and compromise amongst the democratically elected legislature.

--

On a side note, if anyone is interested in a philosophical argument (distinct from the legal one), that the protection of key rights through judicial review is itself inherently democratic, see the recently published Democratic Rights by Corey Brettschneider.