My response to comments on my Same Sex Marriage Roundup post grew sufficiently in length that I decided to make it a post.
How do you feel about the fact that mostly this “new right” is being delivered by judicial decree rather than legislatively? After all it would be hard to argue that many (any?) people alive at the ratification of the constitution would believe they were granting Gays the right to marry.
[Well, we’re really talking about those who were alive at ratification of the 14th amendment, but point taken].
The framers didn’t see the constitution as “granting” rights. They saw all rights as “inalienable…
And he courts added,
Well yes but this “new right” of same sex marriage was not balanced by the democratic process. The courts pretty much trashed most of the representative democratic process in reaching this decision.”
So here are my thoughts.
As Lance said, the Founders thought rights are inalienable, not granted. The question then becomes what things are included in that set of inalienable rights. Hamilton’s argument against a Bill of Rights was that you can’t make a complete listing, but any list created would be seen as a complete set, excluding other rights. And indeed that wrong interpretation he warned of has come to pass.
But properly understood, when it comes to inalienable rights the democratic process has absolutely no legitimacy. You can’t determine inalienable rights by a vote of the demos or of its representatives. And properly understood, the constituency of the Supreme Court is the Constitution itself, not the people. So while judicial decision-making is a highly imperfect process for distinguishing inalienable rights, it’s about as good as we can humanly do. As Justice Jackson said, ” “We are not final because we are infallible, but we are infallible only because we are final.”
All of the same-sex marriage judicial decisions so far have been decided on equal protection grounds. We agree there is an inalienable right to equal protection of the law, but what does that mean in practice? It’s not simply logical to assume that we would sometimes get it wrong in practice, it’s an inescapable conclusion of our understanding of human nature and the tendency toward bigotry against difference that we inevitably will get it wrong in practice sometimes. And at those times it is “emphatically the province and duty” of the Courts to disregard the democratic process.
So while I wish the demos had been more on the ball in protecting equal rights, I am not at all bothered by the courts stepping in to correct the demos’s constitutional error. Nor, contra he courts, do I see this as a “trashing” of the democratic process; rather, as I see it, an illegitimate democratic outcome is a trashing of the Constitution.
The difficulty here in the conflict between democracy and judicial review is not theoretical, then, but there is a practical problem: the danger that the demos will be so committed to its unequal treatment of others that it will refuse to go along with the Court’s ruling. Yet history seems to suggest that when the Court is right, the public eventually goes along. Because the Court has, as Hamilton said, neither the purse nor the sword, only judgement–the greater the quality of that judgement, the more likely the demos is, in the long run, to be persuaded.
Consider the responses to Brown v. Board of Education. That decision led to riots and massive resistance by states and localities. And yet today you can’t find any serious person of any ideological camp that argues it was the wrong decision. With sufficient time for reflection, the demos was persuaded by the Court’s logic.
And I think the same is true for same-sex marriage, except that it is far far less divisive than was integration. The demos is increasingly persuaded that denial of SSM is a denial of equal protection. Amazingly, the change is not simply inter-generational but intra-generational as well.
I predict that there will be wailing and gnashing of teeth when the Supreme Court finally makes its definitive ruling, but no riots and few serious attempts at resistance.