It looks like the people of California have not been disenfranchised nearly as much as I was concerned about in my post yesterday. They have been disenfranchised at the federal level, but not at the state level. In its decision yesterday, the Supreme Court nullified the ruling of the (federal) Ninth Circuit that Prop 8 is unconstitutional. Many onlookers assumed that meant that the holding of the trial court, from which the Ninth Circuit was hearing an appeal, would be decisive for California law, and since the trial court held Prop 8 unconstitutional, that would mean that Prop 8 was nullified. But apparently only an appellate court’s decision on unconstitutionality is decisive for California law. So the trial court’s decision may apply to the specific people involved in the case, but not to California generally. The dust has hardly settled from this event, and probably won’t settle for years, but it looks like Prop 8 still stands, as decided by the people of California.
The ruling still says that the people of California may have the authority to make law themselves, but do not have the authority to defend it themselves at the federal level. It is upsetting to see a federal court refusing to recognize the fundamental principle of “government of the people, by the people, for the people” (as Lincoln memorably put it). However, if the lack of a defender means federal appelate courts won’t make any decision either way, then at least the feds are not interfering with the authority granted to California citizens by the state constitution.
It is rather intriguing to consider how this changes the relationship of the federal government to the people. It moves the federal government back more toward a kind of pact between States, rather than being the government of a nation—meaning, a people. If the people only have authority in their own persons at the state level, not the federal, then the state becomes the fundamental locus of legitimate government. I actually kind of like that, because with each passing year the people of the US seem less and less like one people, and more and more like Red America and Blue America, who will never see eye to eye on an increasing range of issues, but hopefully can still agree on a few very basic kinds of cooperation. At the same time, the federal government is becoming less and less representative of the people as a whole, and more and more incapable of even coming to meaningful decisions. If we can only pass a yearly budget one year in four or five, and can’t update the VRA at all forty years later, the operation is on the skids.
So, it is possible to read the SC decision in the Prop 8 case as a diminishing of the federal government, rather than of the people of the United States. Maybe I’m okay with that.