At the moment Rick Santorum was surging again (I know it’s getting old, but we might as well play it out for this electoral cycle), the federal Court of Appeals for the Ninth Circuit confirmed a lower court’s ruling against California’s Proposition 8. That doesn’t mean that gay marriage will resume legal status in the state tomorrow, but it does make it more likely down the road. The full story, with an explanation for why the Supreme Court might not look at this case, is here.
Someone named Maggie Gallagher over at the National Review called the decision anti-democratic, accusing the two justices in the majority of calling 7 million California voters “irrational bigots.”
This is a pretty predictable response. And despite Gallagher’s histrionics, it’s also a legitimate one. The most important story of Proposition 8 is that social conservatives are trying to restrict the definition of marriage, and gradually they are losing. That story is pretty familiar by now. But the other story of Proposition 8 – the less familiar one – is about democracy, and just how complicated it is.
“Democracy,” like “freedom,” is a word that moves like a hurricane through American political rhetoric; lacking any definite dimensions it can be neither challenged nor dismissed and it flattens anything standing in its way. But democracy and its reception are far more complicated than politicians usually allow, and always have been. Two-and-a-half centuries ago, the founders wrestled with just how much democracy would be appropriate in the United States. The first several presidents and the first major political parties continued to ask that question, many of them leaning toward “not much,” given that they judged the electorate to consist mainly of what we would call today “low information voters.”
They structured government accordingly. Gallagher’s complaint is that judges overturning voters is fundamentally anti-democratic. That’s true. But the judiciary is anti-democratic by design. The judicial branch of government is supposed to serve as a brake when the popular will of the people and their representatives move too quickly in the wrong direction. How do we judge what is “wrong”? We don’t. Judges do. That’s the point.
The judicial branch was originally far weaker than it is today, but the power of the courts has been accepted and acquiesced to for a couple of centuries now. Still, whenever the courts overturn something reached through a majority vote, those on the losing side argue that popular will was usurped. Sure. But the relevant question is, should popular will have been usurped? Most would agree that Brown v. Board Of Education was right to reject the majority opinion of many Southern states, and most would agree that Korematsu v. United States was wrong not to challenge popular opinion regarding Japanese internment. Most would probably argue back and forth about whether Bush v. Gore constituted judicial overreach, but the point is that there is grounds for an argument.
Gallagher points to “7 million voters” to emphasize that this is direct democracy we’re talking about here. And it is: California has a ballot process that is as direct as democracy gets. That process, though, is an example of how messy democracy can be, and how counterproductive. California voters demand tax cuts and spending increases at the same time and then they take away the authority of legislators to negotiate compromises. California’s economic mess is in part a direct result of popular initiatives.
It’s not a winning argument today to say that a small group of politicians and jurists can govern better than the voting population but that’s the premise behind the constitution. That’s what John Adams, Alexander Hamilton, and – initially, at least – James Madison believed. That’s what John Marshall advocated for. The founders weren’t always right, and they probably didn’t have in mind the current crop of representatives, but they did realize that what the majority votes for is not always what is best for the nation, and that there are some principles that should come before popular sentiment.
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