In Defense of Not Defending Prop 8 and DOMAStephen Blakley

Commentary by Stephen Blakley

On Saturday, March 5, 2011 an article appeared in the viewpoints section of the Sacramento Bee authored by Margaret A. Bengs with a headline that read “Basic right of self-government is in peril.”

In this article Ms. Bengs questioned former Gov. Arnold Schwarzenegger’s and former Atty. Gen. Jerry Brown's refusal to defend Prop. 8 on the grounds that it is unconstitutional, as well as the U.S. Department of Justice's recent decision to no longer defend the Defense of Marriage Act for the same reason.

In her article she says “in our country, a president or governor cannot decide what is constitutional and what is not. Their authority cannot override a law passed by Congress and signed by the President, or in California and amendment to Constitution enacted by the people.”

She goes on to say “what's more, whenever there is a question of authority among three branches of government, “the legislative authority necessarily predominates,” James Madison wrote in Federalist 51, as it most closely represents the people.” James Madison

What she fails to mention is that in that same letter to the people of New York, Madison goes on say “In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.”

She also stated “whatever one's view of same-sex marriage, we must be disturbed when the constitutional process whereby we exercise the right to govern ourselves is undermined.”

Further reading of Madison’s words in Federalist 51 reveal that he shared her concerns, but he also understood that the rights of the minority cannot be subjugated by the will of the majority... “it is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure.” and “In a free government the security for civil rights must be the same as that for religious rights.”

Finally, she makes a statement and goes on to ask a question “usurpation of power to promote one's personal opinion might feel like “success”… but what will prevent a future president from refusing to represent environmental protection act or any other law that he may personally oppose?”President George H.W. Bush

Where were these concerns when the second President Bush quietly claimed the authority to disobey more than 750 laws, asserting that he had the power to set aside any statute passed by Congress when it conflicted with his interpretation of the Constitution; and rewrote regulations that weakened both the Clean Air and Clean Water Act during the early 2000’s, allowing mining companies to pollute waterways and power plants to avoid particulate regulations?

Let’s not fool ourselves, this is nothing new and in no way threatens the American way of life or our system of government.

As far back as 1946 in the court case United States v. Lovett, the Supreme Court considered a regulation requiring withholding salaries from government officials said to be radicals. The executive branch complied with the law but told the Supreme Court that is was unconstitutional. A lawyer representing Congress urged the court to uphold it and the justices struck it down.John Roberts

In 1990 in another case on the politically divisive issue, after an acting solicitor general told the Supreme Court that the Justice Department would not defend the Federal Communications Commission affirmative action program because, in language echoing Mr. holders, it “could not withstand the exacting scrutiny required by the Constitution.” The commission filed its own brief defending the program, and the court upheld it. The acting Solicitor General who refused to defend the program, John G. Roberts, Jr., is now chief justice of the United States.

Those who now complain the Justice Department is failing in its constitutional duty to defend federal laws might heed the words of one of the conservative movement’s best known scholars, Robert Bork, former appeals court judge and Solicitor General under presidents Richard Nixon and Gerald Ford, when called on to defend campaign finance law before the Supreme Court, Bork filed seemingly dueling briefs and was slammed by critics for not simply defending the law.

He responded that it would be a “betrayal of profound obligations” to the Supreme Court “to take the simplistic notion that whatever Congress enacts we will defend.” (He said so in a letter quoted in an essay by a later Solicitor General, Seth Waxman.)

If anything, the most recent elections have indicated that the most important issues on voter’s minds are jobs, the economy and government spending. With this in mind, the question to be asked is, how much of the taxpayer’s money should be used to defend laws which the administration feels will not pass the test of constitutionality?

In a time of threatened austerity the government's continuing effort to legislate morality serves no economic, fiscal or legal purpose. It only serves to limit the rights of a minority in furtherance of a specific religious viewpoint.

There is an old saying that where you stand on an issue depends on where you sit and this is just another example. Ms. Berg has clearly telegraphed exactly where she sits. And shame on the Sacramento Bee for allowing this thinly veiled attack on the gay community and basic human rights to be published without subjecting it to the scrutiny it so clearly deserved.

Stephen Blakley is the Lead Consultant with Measured Outcomes. He can be reached at


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