Your Lying Eyes

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01 July 2011

Plebiscites are, by Definition, Unfair, Apparently

A Federal Appeals court has struck down Michigan's anti-affirmative action law because it was a voter-passed constitutional amendment.
Because less onerous avenues to effect political change remain open to those advocating consideration of non-racial factors in admissions decisions, Michigan cannot force those advocating for consideration of racial factors to go down a more arduous road than others without violating the Fourteenth Amendment.
In other words, the law is unfair because those who oppose the law don't have the votes to overturn it. Is this a novel interpretation of the 14th amendment? Has a court ever before invalidated a law simply because the majority voted for it, and thus the minority can't win because they're in the minority?

Granted, that's kind of the point of constitutional protections, so that the majority cannot change the rules on a whim. But here the court is not ruling that the law itself is unconstitutional - but that the law is unconstitutional for the very reason that it was voted on by the majority. Fascinating.

There simply is no end to how creatively liberal judges are willing to rule in order to strike down laws they don't agree with. It thus becomes nearly impossible for conservatives to make any headway on policy as anything controversial will simply be invalidated by the judiciary. Without the bare majority in the Supreme Court, there would be no hope at all.

Conservative judges do of course invalidate laws themselves. But when they do, as with the campaign-finance and gun-control laws, their approach is one of stubbornly literal adherence to the constitution's text (against the revisionist view that their adversaries advocate). Justice Kennedy for example argues that political campaigning involves speech, and since the government can't curtail speech, it can't curtail people's ability to engage in campaigning. But I can't recall a "conservative" opinion utilizing as creative an interpretation of the U.S. Constitution as the court ruled in this Michigan case.


Anonymous Nanonymous said...

The pattern has been evident for a long time now: The higher is the court, the less restrained by law its judges feel.

July 02, 2011 12:17 PM  

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