Judge: Schuette must defend entire constitution

The Hon. William C. Whitbeck

It is usually cold when, every four years on the first day of January, Michigan’s elected state officers gather on the worn steps of the Capitol to take their oaths of office, and often the wind whips up. It is an open-air venue and sometimes their words come across as flat and muffled, despite the best efforts of the sound technicians.

So it is well to remember that when Attorney General Bill Schuette twice stood on those steps and raised his right hand, he swore an oath to support “the Constitution of this state” and “to faithfully discharge the duties of the office of Attorney General” according to the best of his ability.

Note that the attorney general did not swear to defend only those parts of the constitution with which he personally agrees.

He did not swear to defend only those provisions that were proposed by the constitutional convention and approved by popular vote, as opposed to those adopted by later amendment. And he most certainly did not swear to defend only those sections of the constitution that are currently favored in the polls. No, he swore to support the entire constitution.

It is certainly true that the attorney general has wide discretion in discharging the duties of this office. Under the doctrine of prosecutorial discretion, he can bring some criminal actions and decline to bring others. On the civil side, he can defend certain actions and settle others.

But when it comes to the constitution, he has no such discretion; he is not at liberty to pick and choose among the constitutional provisions. Unless and until a given provision is replaced or repealed, the attorney general must defend it.

This brings us to the question of same-sex marriage. Ten years ago, voters in Michigan passed an amendment to Michigan’s constitution that defined marriage. By a 59 percent to 41 percent vote, voters defined marriage as the union of one man and one woman. That provision is now being challenged in court. And the attorney general, consistent with his oath of office, is defending it.

Here, there is a fundamental principle at stake. As a former judge, I can state unequivocally that there is nothing in our judicial commission that invests us with any greater wisdom than the average voter to decide questions of policy as opposed to questions of law. We are not philosopher kings; our job is to interpret the law, not make it. And when we interpret the constitution, we interpret the law that the people, by casting their ballots, have made.

■ The 6th Circuit Court of Appeals in Cincinnati, when hearing the challenge to Michigan’s same-sex marriage provision, stated that, “The history of our democracy demonstrates the wisdom of allowing the people to decide important issues at the ballot box, rather than ceding those decisions to unelected judges.”

■ Supreme Court Justice Anthony Kennedy has written that, “It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds.”

■ And fellow Supreme Court Justice Stephen Breyer noted that, “‘The Constitution foresees the ballot box, not the courts, as the normal instrument for resolving differences and debates’ … in short, the ‘Constitution creates a democratic political system through which the people themselves must together find answers.’”

These judges and justices are not closed-minded traditionalists. They see themselves, rightly, as supporting and defending the law that the people have made and the democratic process itself. Attorney General Bill Schuette is in good company as he discharges the oath that he twice so solemnly swore in front of the Capitol on those cold winter days.

Judge William C. Whitbeck (retired) served on the Michigan Court of Appeals from October 1997 until his retirement in November 2014.