My own initial take on the oral hearings before the Supreme Court is that this is not how a free, self-governing people arrange their affairs. Issues of fairly clear principle get obscured by arcane legal arguments that ordinary citizens cannot reasonably be expected to follow. They are decided by a majority of nine Justices, but almost immediately become an unchangeable law of the land. And as Roe v. Wade has demonstrated, those citizens who hold the legal opinion of four or fewer Supreme Court justices then find that any victories they win in the ballot box or legislative assembly are set at nought by legal decisions that may rest on rights and principles that no one had ever seen before. But whereas electoral defeats serve to reconcile the losers to laws they opposed, judicial defeats leave them feeling that their democratic rights have been usurped and must be recovered.
David Boies, a distinguished lawyer for those seeking same-sex marriage, justified this procedure ringingly on one of the weekend talk shows. Constitutional and human rights, he said, were “too important” to be settled by majority votes and democratic decision-making. I always find this argument revealing: We, the People, are apparently to be restricted to deciding trivialities. What other controversies concern matters that are “too important” for the voters to decide? And what branch of government determines whether a particular issue falls into the “too important” category rather than the “democratically accountable” one?
If Mr. Boies is consistent, he will have to assign that responsibility to the Court, since otherwise, the People could simply recategorize an issue that the Court had decided “wrongly” and determine it by brute voting. Indeed, since the Court has in the last 60 years or so discovered rights that nobody had previously written down in the Constitution, it could presumably discover that any political dispute fell under a rights heading and reserve it for its own decision: “too important etc.”
Before long, if the People were to resist, Mr. Boies would be humming along with the New York Times that popular favorite: Minority Rights v. Majority Rule. But the opposite of minority rights is majority rights, and the opposite of majority rule is minority rule. Granting constitutional protection of minority rights to a ruling minority threatens, even overturns, majority rule on those questions, but it does not necessarily guarantee minority rights overall. A constitutional provision granting final power on rights issues to the Courts would guarantee the rule of a minority, namely judges, and that would probably safeguard their rights, if not indeed their interests too. But that would not advance the protection of minorities in general. Which branch of government were the slaves better able to rely upon for protection in 1860 — the elected presidency and Congress, or the appointed Supreme Court? Ask Dred Scott.
The blunt truth is that in a democracy — which must include majority rule to be a democracy, right? — the protection of people’s rights (whether they constitute minorities or majorities or both at different times) must ultimately accommodate the principle of popular consent. Some kind of reconciliation between the rights of unpopular minorities and popular consent can probably be crafted. For instance, the Court could ask Congress to postpone the application of a contested law for a period, say one year, to allow for the cooling of popular passions and the operation of second thoughts. Or, second example, the Court’s rejection of legislation as unconstitutional could be overturned by a two-thirds majority in one of the houses of Congress. Or, third example, the Court’s rejection of legislation would need to be seconded by either Congress or the president in order for the law to be overturned. Or some combination of the above.
All of these proposals compromise the principle of majority rule to a greater or lesser extent; but they also express a respect for it that is lacking in Mr. Boies’s comments, or in New York Times editorials, or in the widespread acceptance that judicial review is essentially limitless and irrevocable. They would be at least a step towards making America a democracy or, for purists, a democratic republic.
Lawyers must already be groaning that I don’t know much about law or the U.S. Constitution. Perfectly true. But I can recognize the growing sentiment among American elites in favor of transferring power and authority from democratically accountable institutions to bodies that reflect elite values and interests as transmitted by Ivy League law schools. The advocates of same-sex marriage like Mr. Boies mostly fall into this category. At the same time, they constantly tell us that the nation is moving inexorably towards the adoption of their reform in opinion polls and, recently, in popular referenda. So why don’t they abjure judicial over-reaching and seek same-sex marriage by exercising the one right that is synonymous with majority rule?
Vote for it.