You might have seen the A-B-C reasons for supporting Proposition 8 which restores natural marriage. "A" stands for activist judges. Even though over 61% of the voters supported natural marriage by passing Proposition 22 eight years ago, four California Supreme Court Justices decided the voters were wrong. How did we get to a place where four judges can turn the decision of over four million voters on its head?
Coming at the end of a historical period referred to as the Enlightenment - where human reason was considered the source of truth - Darwin published his book Origin of the Species in 1859. Primed by the current reliance on reason, many thinkers of the day latched onto Darwin's theory of evolution as the final step away from God as the transcendent source of truth. No longer did they need to rely on God to explain the existence of mankind. The doors were now open to the primacy of man - not as the pinnacle of creation - but as the species fortunate enough to evolve beyond the others.
This break did not stop with biology, but bled over into other disciplines, including law. Prior to this time, William Blackstone's commentaries on the law served as one of the primaries sources for educating lawyers. In his introduction to the nature of law, Blackstone writes "[u]pon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these." This was the common view of the time, that human laws must submit themselves the laws of nature and nature's God.
However the introduction of an explanation for our existence apart from God spawed an explanation for the nature of law apart from God. The newly devised case study method for training lawyers that came in the wake of Darwin's theory - where the study of law focused on the decisions of judges - promoted the idea that the law must also evolve over time. The purpose of the courts was not to determine what was in the Constitution and other laws, but what those laws should mean. And, that meaning was determined by what these judges detemined fit the needs current society. The law had lost it moorings and was now afloat in the haphazard currents of personal preference.
Fast forward to today and we find ourselves experiencing the results of 150 years of this new way of looking at the law. What we find should not surprise us. This process has led to judges acting as the final arbitors of our law. They alone decied what laws are good for us and what laws are not. They alone decide right and wrong.
While we can turn the tide and begin to retake lost ground, it will take time. That makes this coming presidential election critical. When the next president takes office, six of the current United States Supreme Court Justices will be over 70 years of age. The next prsident will likely appoint two Justices, maybe more. As important, the President nominates appellate court justices. Most appeals stop at the appellate courts and most of our law is "made" there. The next president has the power to affect the condition of our country for decades and maybe longer, appointing justices that will continue to take the law into their own hands, or appointing justices who will respect the power of the legislature and executive and who will look to what our Constitution and laws say, not what they'd like them to say.
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