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Please, let's not let this thread get derailed into a discussion about gay marriage. Everybody has an opinion; nobody is going to convince anybody. Instead, everywhere in the linked article you see the words "gay marriage," substitute the words "right to keep and bear arms." That Ted Olson is arguing this line of reasoning in a case which will have VAST implications for ALL areas of constitutional government is unbelievably hard to swallow:

“State officials have the right to act as a check on the people’s power” in Prop. 8 battle
Pajamas Media

There comes a time in every lawyer’s career when, in order to win a case, you find yourself making an argument so absurd that even you don’t believe it. That must have been how distinguished attorney Theodore B. Olson felt when he recently tried to convince the California Supreme Court that “state officials have the right to act as a check on the people’s power.”

I’ve been trying to wrap my brain around that line of reasoning ever since I first read of it yesterday, but I keep coming to the same conclusion: that Olson’s stance is the fast lane to totalitarianism.

How did a high-profile constitutional lawyer arrive at this quite remarkable moment in his career?

The quote in question can be found in this L.A. Times article about the latest wrinkles in California’s endless legal struggle over Proposition 8, the gay marriage ban:

During Tuesday’s hearing, Chief Justice Tani Cantil-Sakauye suggested that there would be no one to “safeguard the precious power” of citizen initiatives if their sponsors were not allowed to defend them.

“Doesn’t that make the initiative process illusory?” she asked.

Justice Carol A. Corrigan pointed out that the courts, not the governor or the attorney general, are supposed to decide a law’s constitutionality. She asked whether elected officials have “pocket vetoes” over voters.

The state high court has long allowed sponsors to defend ballot measures, but has never before ruled on whether they have an automatic right to do so.

Charles J. Cooper, representing ProtectMarriage, told the court that initiative sponsors represent the state, especially “when state executive officials have refused to do their duty.”

But Theodore B. Olson, a lawyer for two same-sex couples challenging Proposition 8, argued the California Constitution gives only state officials the right to represent the people in court, and state officials have the right to act as a check on the people’s power.

{snip}

Wow. That’s quite a statement. My interpretation of this line of reasoning is that democracy, the will of the people, and the power to vote on laws, are all null and void if bureaucrats decide that the populace is exercising to much “power.”

As far as I can tell, this isn’t just a slippery slope: It’s a sheer cliff straight into totalitarianism. Because if state officials can simply ignore or discard laws they don’t like, then what’s the point of having elections in the first place?

Here is the rough sequence of events, again, having to do with gay marriage, but in your minds, substitute "CHL law," or "expiration of assault weapons ban," or "right to keep and bear arms," and you should be rightly terrified of where this line of reasoning leads:

1. 2000: California voters overwhelmingly pass Proposition 22, affirming marriage as being between a man and a woman.
2. 2004: mayor of San Francisco begins performing gay marriages in violation of state law. Those marriages are quickly invalidated.
3. 2005: state legislature makes gay marriage legal, in defiance of Prop 22. Schwarzenegger vetoes it.
4. 2008: California Supreme Court invalidates Prop 22 as being in violation of California Constitution.
5. 2008: California voters react by overwhelmingly passing Proposition 8, amending the state's Constitution to define marriage as being between a man and a woman.
6. Gay marriage proponents immediately challenge Prop 8 as a violation of the U.S. Constitution. As the case wends its way through the lower courts, represented by Ted Olson, the California AG defends it, as per custom.
7. 2010: Jerry Brown is elected governor. He and his AG, Kamala Harris, decide that they will no longer defend the will of the people because they disagree with it, never mind that it has been law for 2 years.
8. Prop. 8′s sponsors then asked the courts to be allowed step in and appeal the ruling themselves, and do the job that the Brown and Harris refused to do.
9. Gay marriage proponents argue that Prop 8's sponsors do not have "standing" in the case on the principle that they do not have the right to defend a state law.
10. The case is now before the state Supreme Court, and gay marriage proponents continue to argue that Prop 8's sponsors do not have standing, and that if the state AG will not defend the law, then it should be a dead matter. It's proponents are arguing that this issue has been settled repeatedly by the voters, represents the clear will of the voters, and that the refusal of the state's AG to defend the peoples' will as reflected in state's amended Constitution which was amended before the AG was elected, is in itself unconstitutional.
11. 9/7/2011: Ted Olson makes the argument before the court that elected officials have the right to act as a check on the people's power.

Again, let's please not make this a debate about gay marriage. Consider the implications of this line of reasoning of Ted Olson's in anything having to do with firearms law. For instance, CHL has been a matter of settled law in Texas since 1995. What if the Texas AG decided that he would not defend a challenge to it, simply because he had a philosophical disagreement with it. What if the voter photo ID law which was recently passed was challenged, and the Texas AG decided not to defend it?

But on a larger scale, as Pajama Media points out, the results of what happens in California will have national implications because the case could go as far as SCOTUS. Imagine the following hypothetical scenario:

• California voters get fed up and overwhelmingly pass a ballot initiative creating a Shall Issue concealed carry law.
• HCI challenges it.
• The next AG decides not to defend it because he/she dislikes the 2nd Amendment.
• Initiative supporters request that the state court grant them standing to defend the initiative.
• HCI argues that they do not have standing, only the governor and AG have standing and that this a US Constitutional issue.
• HCI wins in the state court.
• Initiative proponents appeal to the federal courts.
• The federal courts rule that this is a state matter
• Concealed carry is suddenly at risk in virtually every state in the union.

What do you all think?

Sir, once again you have brought to light a very intense and pertinent issue. So often folks will get caught up in a specific viewpoint without looking at the greater ramifications of it. All the power of any government in the US of A is derived from the consent of the people to be governed. For this guy Olson (and I know who he is) to say that the state has a RIGHT to act as a check on the people is beyond outrageous. The state should only interfere with the will of the people when that will would bring individuals to direct harm (for ex. slavery); it is a very narrow "check", not a broad one as he makes it seem. Our courts, at whatever level, do NOT exist just to be a rubber stamp for elected officials, either. Those are what is colloquially known as "kangaroo courts" if I am not mistaken. Yes, indeed, whether you are for or against "gay marriage" is irrelevant in this situation...it is the big picture that really matters.

On a side note, maybe Olson has just been partaking of the wonderful products from Humboldt County...he might have one of those "medical conditions", you know...

Heartland Patriot wrote: On a side note, maybe Olson has just been partaking of the wonderful products from Humboldt County...he might have one of those "medical conditions", you know...

Patriot -- I think your spellcheck mis-corrected you post. Apparently it changed the word "mental" to "medical".

We see this type of attitude from the states and feds all the time. It manifests itself in the reluctance of DA's to go after bad police shoots, slaps on the wrist for congressional misconduct, Chicago and DC bending over backwards to subvert the supreme court, mayors and police chiefs unliaterally deciding that state preemption doesn't apply to them, etc...

What I see that has happened is that what was once a valid civil rights movement and endeavour has been corrupted into a social engineering movement. Those who disagree with their vision are simply misguided simpletons probably clinging to their guns and bibles. We have elected people who truly believe that their election was a mandate from the people to rule as they see fit. "They must agree with my vision of society, they elected me.", seems to be an all too common view of many elected officials. When medical marijuana passed in Kali there were several officials in Sacramento who flatly stated "we are delaying implementation of the law because we think it irresponsible and we need to save the people from themselves". I don't recall who personally said that but I certainly remember hearing the recorded quote repeatedly on the news.

Mayor Nichols in Seattle openly defied the state when he was informed that he couldn't ban guns in parks. He pretty much said that he didn't care what the law was, he felt the way he felt about the issue, he would arrest anyone caught in the parks and what were you going to do about it. The police chief in Milwaukee has done more or less the same.

Now we are seeing this play out with gay marriage. I find it appaling that any government official would simply dismiss the will of the people like we keep seeing. The stage is certainly set for someone to make a play for complete unfettered control. The attitude amongst our officials is becoming quite alarming and I fear it is spreading. There needs to be a better way to hold our officials accountable to the law and constituition than just elections. Granted we know what the ultimate compliance tool is, an armed populace, but no one really wants to go there.

I really have thought about this for a long time and couldn't possibly get my thoughts organized enough to write a coherent post but these types of things make me really want to go buy more ammo....

He has it backwards. The People have the right to act as a check on government officials. When doing so, they can use various means, up to and including the means used 235 years ago.

I agree to a point, if for example the people voted to restrict gun ownership to police and military this line of reasoning fits. I do not think the people have any more right to restrict peoples rights than the government does.

He has it backwards. The People have the right to act as a check on government officials. When doing so, they can use various means, up to and including the means used 235 years ago.

Yup.

This is how I see it....

1. 2000: California voters overwhelmingly pass A LAW CREATED AND ACCEPTED BY A MAJORITY OF THE CITIZENS.

2. 2004: mayor of San Francisco begins violation of A LAW CREATED AND ACCEPTED BY A MAJORITY OF THE CITIZENS.


3. 2005: state legislature ignores A LAW CREATED AND ACCEPTED BY A MAJORITY OF THE CITIZENS. .

4. 2008: California Supreme Court invalidates A LAW CREATED AND ACCEPTED BY A MAJORITY OF THE CITIZENS.

5. 2008: California voters react by overwhelmingly amending the state's Constitution in line with the previous LAW CREATED AND ACCEPTED BY A MAJORITY OF THE CITIZENS.

6. A minority of proponents immediately challenge LAW CREATED AND ACCEPTED BY A MAJORITY OF THE CITIZENS.

7. 2010: Jerry Brown is elected governor. He and his AG, Kamala Harris, decide that they will no longer defend A LAW CREATED AND ACCEPTED BY A MAJORITY OF THE CITIZENS.


11. 9/7/2011: Ted Olson makes the argument before the court that elected officials have the right to IGNORE THE WILL AND THE LAW OF CITIZENS

Regardless of the original "issue", the REAL issue that concerns EVERY SINGLE CITIZEN is that the WILL of the people is being ignored by THEIR OWN GOVERNMENT.

This could just as easily be about any number of tyrannical subjects such as:
-Confiscation of property
-Confiscation of income
-Suspension of due process
-Suspension of ANY constitutional rights

When a government BLATANTLY ignores the will of the people, and the LAW of the people, they are no longer fit to govern IMO.

My condolences to those good citizens in Kalifornia...

While I undertand, and mostly agree with what y'all are saying, let me play devil's advocate for just a minute.

Let's say the good citizens of the State of Texas (who do not currently have the same rights to initiate a law that the citizens of the State of California do) did have that right, and come proposes a law that effectively makes someone an indentured servant to someone that they owe money to, and have not kept up with payments (example: instead of merely walking away from a house that they can no longer afford, people will be held liable to the mortgage holder to work off the mortgage). In effect - indentured slavery.

Probably none of the members, here, feel it's right that someone can just walk away from a home they couldn't pay for in the first place - that hits all of us in the pocketbook by lowering our home's values, causing property taxes to raise, lowering the standards of our neighborhoods (if you have ever lived next to an abandoned house, you'll understand that even million dollar mansions can become squat houses for those who wish to do so).

Would the government have the right to act as a check on the people's power in that case?

Again, I wouldn't want this applied to a law that enhanced my rights as a gun-owner, but I wouldn't mind it being applied to a law that restricted my rights on the other hand. Or, are the people ALWAYS right?

Wayne

I think a good way to put it is the government has to protect the minority from the will of the majority sometimes.

Our own US Attorny General has selectively decided not to prosecute others for committing crimes.

The New Black Panthers in PA.
Many illegal immigrants.

C-dub wrote:Our own US Attorny General has selectively decided not to prosecute others for committing crimes.

The New Black Panthers in PA.
Many illegal immigrants.

I will say thine one more time. The criminal charges were dropped by the BUSH DOJ the Obama DOJ declined to push a civil case. Also more people have been deported under Obama at this point than many of his predecessors. So your statement is wrong on both points, contribute to the discussion or don't, but do it with facts.

n5wd wrote:Would the government have the right to act as a check on the people's power in that case?

It depends what the US Constitution and the Texas Constitution say.

If the ballot initiative is unconstitutional, the state officials have the power to challenge it in court and have it overturned. They do not, however, have any right to refuse to comply because they don't like it, or because it's at odds with their personal beliefs and prejudices. Unless I also have the right to refuse to pay taxes simply because I don't like paying taxes.

To take your example specifically, the 13 Amendment allows involuntary servitude as "punishment for crime whereof the party shall have been duly convicted" but not for civil matters, such as debt or bankruptcy.

loadedliberal wrote:I agree to a point, if for example the people voted to restrict gun ownership to police and military this line of reasoning fits. I do not think the people have any more right to restrict peoples rights than the government does.

n5wd wrote:While I undertand, and mostly agree with what y'all are saying, let me play devil's advocate for just a minute.

Let's say the good citizens of the State of Texas (who do not currently have the same rights to initiate a law that the citizens of the State of California do) did have that right, and come proposes a law that effectively makes someone an indentured servant to someone that they owe money to, and have not kept up with payments (example: instead of merely walking away from a house that they can no longer afford, people will be held liable to the mortgage holder to work off the mortgage). In effect - indentured slavery.

Probably none of the members, here, feel it's right that someone can just walk away from a home they couldn't pay for in the first place - that hits all of us in the pocketbook by lowering our home's values, causing property taxes to raise, lowering the standards of our neighborhoods (if you have ever lived next to an abandoned house, you'll understand that even million dollar mansions can become squat houses for those who wish to do so).

Would the government have the right to act as a check on the people's power in that case?

Again, I wouldn't want this applied to a law that enhanced my rights as a gun-owner, but I wouldn't mind it being applied to a law that restricted my rights on the other hand. Or, are the people ALWAYS right?

Wayne

loadedliberal wrote:I think a good way to put it is the government has to protect the minority from the will of the majority sometimes.

OK, n5wd and loadedliberal raise some valid counterarguments. But, isn't that what the SCOTUS exists for? Indentured servitude is a violation of the U.S. Constitution, isn't it? Did it not get nullified by the 13th, 14th, and 15th Amendments? But, and I hesitate to use this example because I really truly do not want this thread to degenerate into a gay marriage debate, stepping where angels fear to tread and using gay marriage as an example.....What part of the Constitution addresses gay marriage, polygamy, polygyny, or any other inventive sort of adult sexually charged relationship? It simply doesn't. So doesn't that become a state's rights issue? And if it is a state's rights issue, and the citizens of a state in overwhelming numbers pass, repass, and finally write into their state constitution a certain definition of marriage as between two heterosexual partners, then unless it can be proven to be a violation of the U.S. constitution, how can a governor and an AG refuse to defend it? After all, in the case of California, both the governor and the AG categorically state that they will not defend it because they are personally against it........not because they say it is illegal.

That brings us right back to the original question: should it be permissible for two officials who are constitutionally charged with defending the state's laws and the state's constitution to refuse to do so, so long as the state law and the state constitution have not been ruled unconstitutional at the federal level? I understand that the rights of minorities need to be protected, but until something has been adjudicated as a right, then the rights of The People, as codified in the laws that they pass and the amendments to the constitution that they pass MUST take precedence.

So, in the case of the California litigation:
A) The People have overwhelmingly passed a law against affirming a definition of marriage.
B) The People affirmed that desire by amending their constitution to uphold that law.
C) Neither the state's original law (Prop 22), nor the amendment to the state's constitution (Prop 8) have been ruled unconstitutional by SCOTUS.
D) Therefore, the governor and the AG are violating the rights of the majority.......who also have rights in the matter.

So how do loadedliberal and n5wd respond regarding the rights of the majority? They do have rights.

Maybe we should do something similar in Texas.

1. Elect a pro-CHL AG
2. File suit against PC 46.035
3. Pro-CHL AG doesn't defend 46.035
4. We win by default

I think that state officials acting as a check on the people had better do so only under the most grievous of circumstances and most obviously unconstitutional situations. If they do so in any manner that is only because of their "person preference or personal feelings" then they are no longer acting as a representative of the people or under their sworn authority to uphold the constitution but are instead acting as a dictator who tells the people who and what their rights are and that they had better be happy about it. Our constitution starts as "We the people" and our representative had better remember that.