 |
|||
 |
|||
 |
|||
|
|||||||||||||
| about us |
MAYORS, JUDGES, AND THE CONSTITUTION
By Gary D. Rowe Last spring, San Francisco's mayor, Gavin Newsom, issued marriage licenses to thousands of same-sex couples. He did so because he believes that restricting marriage to heterosexuals violates the federal and state constitutions, and that executing an unconstitutional law would violate his oath of office. Earlier this month, the California Supreme Court condemned Newsom's understanding of his job description. To allow a mere mayor, who likely lacks legal training, to interpret the state and federal constitutions, the court stated, would undermine the rule of law and the integrity of our enduring constitutional tradition. It would violate "the classic understanding of the separation of powers doctrine," in which the legislature enacts statutes, the executive enforces them, and the judiciary interprets them and assesses their constitutionality. But there is in fact nothing classic about the court's understanding of our constitutional system. Its claim that the state and federal constitutions belong exclusively to judges runs contrary to a significant portion of the American constitutional experience. Throughout our history, members of political and social movements seeking full membership in society have defied written laws and challenged prevailing constitutional understandings outside the courtroom -- in the name of the Constitution properly interpreted. It is the mayor, rather than his judicial critics, who has identified what makes the American constitutional tradition a worthy one. In the late 1790s, James Madison, Thomas Jefferson, and the political party they founded faced a grave threat. The Sedition Act of 1798 made it illegal to criticize the government whose policies they opposed. The courts, for their part, upheld the law and imprisoned many of its violators. Rather than acquiesce, Jefferson and Madison turned to the Virginia and Kentucky state legislatures, which denounced the law as unconstitutional. Madison specifically rejected his critics’ claim that the courts alone could say what the Constitution means. That courts typically had the last word, Madison argued, did not mean they should have the only word. When foundational matters were at stake, he thought, multiple officials and institutions acting on the basis of their own interpretations of the Constitution would best preserve liberty. The idea that the courts did not own the Constitution was widely held before the Civil War. Many opponents of slavery took the seemingly far-flung position that the Constitution was in fact an anti-slavery document. Embracing this interpretation, some northern state officials prevented runaway slaves from being returned to the South, despite federal statutes requiring them to do just that. Believing that the struggle over slavery too important to leave to the courts alone, they were unwilling simply to accept statutes as binding until courts said otherwise. The feminist leader Susan B. Anthony, similarly, cast a ballot in the 1872 presidential election, even though the state legislature had not granted her that right, because she believed the Constitution was best interpreted to guaranteed women the franchise. She was arrested, only to begin a national speaking tour before her trial, in which she urged her audiences to adopt her reading of the Constitution. These Americans, not to mention their less well-known contemporaries, regularly turned to the public sphere to reject statutes and existing judicial interpretations that violated their considered but contested understandings of the Constitution. Assertions such as theirs are a vital aspect of American constitutionalism, at least as important as the work of judges. What is truly remarkable is that these activists did not reject the Constitution, but instead embraced it, again and again, in order to claim equal rights. This, not a demand for orderliness above all else, has been the Constitution's lifeblood, enabling it to endure. By insisting on the constitutional rightness of gender-neutral marriage, without waiting for a court's blessing, Mayor Newsom and thousands of gay Americans have followed in the footsteps of James Madison and Susan B. Anthony in their quest for the same formal equality that political dissidents, African-Americans, and women have achieved. The Constitution is, as Franklin Roosevelt put it, “a layman’s document, not a lawyer’s contract.” To view San Francisco's same sex marriages as an unauthorized detour from our constitutional course is to sell American constitutional history short. Gary D. Rowe, Acting Professor of Law at the UCLA School of Law, teaches constitutional history and constitutional law. He is a member of the advisory board at UCLA's Williams Project on sexual orientation and public policy. | ||||||