Ted Olson, Proposition 8 and Freedom

A number of years ago Ted Olson was our guest here in Missoula for a symposium hosted by the University Law School. This is while he was United States Solicitor General under George W. Bush. This was long before he took up the case against the people of California in the recent Proposition 8 legal battle.

In my lead up to the question which I asked him I reviewed constitutional and judicial history a bit by reminding everyone that Thomas Jefferson was in no way directly involved in the writing of the US constitution (he was the US Ambassador to France at the time of the convention). Yet, upon reading the Constitution, there were certain aspects which amazed and delighted him and other aspects which deeply concerned him. The aspect of the new Constitution which seemingly concerned him the most was the un-elected judiciary which was to be appointed for life.

Jefferson wrote: “To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. … The constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots.”

Recently Judge Vaughn R. Walker ruled that the amended California constitution, through proposition 8, is unconstitutional. In the past it was ruled that a California law defining marriage as between a man and a woman was unconstitutional. Now it has been ruled that the amendment to the constitution is un-constitutional.

Jefferson’s warning has become frighteningly clear. The foundations of the republic are at stake. When the vote of seven million citizens is considered null by one judge – democracy has been dealt a blow from which she may not recover without her blood being shed. If a citizenry has been robbed of its God-given right to amend its constitution than liberty by law is in grave peril. In my mind I can see the patriots flag of 1776 with the liberty tree upon it and the words emblazed across it “Appeal to God”.

Ours is a unique nation. The only nation in history to declare in its laws – beginning with its foundational documents – that man is sovereign over government and God is sovereign over man. This ruling is no less than a clear attack upon all religious freedom and Christianity in particular. But what is at stake is freedom itself. It matters not what your opinion is on redefining marriage, there is something much more fundamental at stake here – freedom. If this ruling is allowed to remain, all citizens, regardless of sexual preference, will have been placed under a judicial tyranny which our forefathers would never have accepted. There is still reason for hope that this will be corrected in the courts; however, if not corrected there, it will need to be corrected at any cost.

Back to my question to Solicitor General Olson: I asked him what we could do to turn the tide of judicial activism and protect our constitutional and God-given rights. He responded by doing the “D.C. dance” and didn’t answer the question. Now looking back from the recent California case we can see that he is part of the problem and not part of the answer. In fact, one might wonder if trial lawyers can be expected to correct the judicial problem. It may be that the correction to judicial tyranny will not come through lawyers and judges. But come it must if our children are to be free.

Luke 18:6-8, “Then the Lord said, “Hear what the unjust judge said. And shall God not avenge His own elect who cry out day and night to Him, though He bears long with them? I tell you that He will avenge them speedily. Nevertheless, when the Son of Man comes, will He really find faith on the earth?”

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