Mark at Publius Endures wrote a couple of keen posts about the gay marriage decision in California and the role of the judiciary in controlling the law.  In the first, Mark defends judicial activism by quoting extensively from Alexander Hamilton’s writings in the Federalist Papers.  Interesting reading.

The constitutional republic that is the United States, and which forms the template for many, even most, state constitutions (including, I think, California’s, despite its bad habit of direct democracy), is specifically intended to prevent the tyranny of the majority. In other words, our system of government is supposed to distrust mob rule every bit as much as it distrusts the rule of a king. Indeed, the authors of the Constitution viewed the legislature as the most dangerous branch of government precisely because it was susceptible to the tyranny of the majority.

Hamilton:

"It is not to be inferred . . . that the representatives of the people, whenever a momentary inclination happens to lay hold of a majority of their constituents incompatible with the provisions in the existing constitution, would on that account be justifiable in a violation of those provisions….But it is easy to see that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the constitution, where legislative invasions of it had been instigated by the major voice of the community."

That the judiciary is a supposed to act as a check on the legislative and executive branches of government is more or less a given in the U.S.  What’s unique in my experience is what else Mark goes on to say:

An independent judiciary does not exist solely to "interpret" the law; it actually exists primarily as a means of defending the minority against the tyranny of the majority.

The use of the word "primary" in this statement seems wrong to me somehow.  I would have said that the judiciary’s primary function was to defend the Constitution against increasing irrelevancy in the face of excessive expansions by the other two branches.  To define and defend the fundamental laws and values of the nation, in other words.

Today Mark wrote:

What is so disturbing about conservatives’ reactions to the California decision is the way in which it shows they have so utterly abandoned their stated respect for the Constitution in the 1980s for a form of self-serving majoritarianism in which the sole power capable of overturning local legislative action is through the Presidency of the United States

I was hanging with him until the last bit, an irrelevant slap at the much-maligned George W. Bush that turns piece into an agenda item instead of an analysis.  

Assuming that we accept Mark’s assertion that the judiciary’s prime directive is to defend the legislatively defenseless there is still a question about how much leeway judges should have - or use, to put it a different way - to redefine societal norms. 

During the 1960s and 70s that judges thought nothing of turning cities and families inside-out in their attempt to integrate the next generation of adults by busing schoolchildren across town like cattle.  Unlike opening doors at public institutions to black and white alike, busing was an act that required as its basis an extremely liberal interpretation of the Constitution.  Busing was a failed attempt at social engineering from the bench.  But it does serve as a useful example of recognizable (and ill-advised) judicial activism.  The judiciary overstepped reasonable bounds on its authority in making the busing decision and one result of this controversial ruling was a very real loss of respect for the judiciary across many levels of society.  Small wonder the cry for reigning judicial activism resonates with many Americans.

The California gay marriage case is small potatoes by comparison in terms of activism from the bench.  The polls I saw indicated that the court went against the majority of state residents in this case.  However, that’s not significant considering the rate of change in public opinion.  The majority of Californians will support the ruling in a few years.

The issue that conservatives have with the ruling is the recent tendency for courts to drive change into every state in the union, whether it’s wanted locally or not.  The Constitution is also supposed to divide powers between the state and federal level, a division that, to the framers, had been made quite clearly in the language of the document.  Unfortunately, the balance of power has tilted dramatically in favor of the federal government.

Conservatives do no disdain the Constitution as Mark suggests.  But many do disapprove of actions taken in its name without justification.  If the gay marriage debate were to end with the California case I suspect that most conservatives would be happy enough to let the ruling stand.  But it won’t and that’s the rub.