Judicial Usurpation: Then and Now | Robert George and David L. Tubbs at NRO

Robert George and David L. Tubbs at NRO: For this reason and others, the Court should, absent a constitutional amendment defining marriage one way or the other, respect the constitutional allocation of powers and principles of American federalism and allow each state legislature to make policy in this area. The Court should be equally deferential to state referenda (such as Proposition 8 in California) and the 30 amendments to state constitutions that define marriage as the union of one man and one woman. These initiatives are constitutionally legitimate and reasonable policy measures, launched largely because of the provocations of state-supreme-court judges who have redefined marriage for the people of several states. Whatever the liberal pundits have been saying since Election Day, the redefinition of marriage throughout the United States is not “inevitable.” And if the Supreme Court were to invalidate Proposition 8, it would be an act of judicial usurpation even more egregious than its abuse of power in Eisenstadt.