Notes From Babel

Who Will Counter the Counter-Majoritarians?

with 5 comments

It’s not the coast guard.  (“Homer the Vigilante” at 10:00.)

The Perry ruling on Prop 8 offers an opportunity to test one’s understanding of the concepts of “judicial restraint” (or, conversely, “judicial activism”) and counter-majoritarianism.  Jason Kuznicki remarks that it makes no difference how many Californians voted for Prop 8 if it ultimately violates the Constitution.  As a consequence, he has little patience for those railing about the loss of the right to self-government:

Unless you’re prepared to say that no referendum can ever be overturned by a judge, you’ll need to offer more than that. The United States is not and never has been a pure democracy, nor is our government one without limits. An important limit to government is fair play, which is what judges are there for.

It is indeed important to look beyond the knee-jerk reaction upon a federal judge undoing the will of the majority.  Conservatives presently find themselves asking for just that result with the state lawsuits against Obamacare.  (While it is true that the majority of Americans actually didn’t want the new health care law, this point is not relevant to the legal question—the fact that a majority of the people’s duly elected representatives passed the law is all that matters.)   So, on the one hand, we have liberals accessing the counter-majoritarian function of our Constitution to effect the social and economic change that had been prevented by the majoritarian process, and, on the other hand, we have conservatives accessing that same function to try to undo the social and economic change effected by the majoritarian process.  Why is one wrong and the other right?

Americans are fond of describing their system of government as having “checks and balances.”  It is probably the entire distillation of most high school students’ understanding of our political system.  Thus, it is not hard to understand why the will of the majority should not always carry the day.  There are certain rights so fundamental that they ought to be removed from the standard course of law-making, where bad ideas too often find their way into law, and where self-interestedness and cronyism and cretinous bigotry are not always flushed out and exposed.  Thus, during certain rare moments in civic life, the people erect counter-majoritarian protections, enshrined in state and federal constitutions, and entrust judges—themselves also insulated from the political process—to apply and enforce them.

But if judges and counter-majoritarian laws are both insulated from the political process, then how can the people be assured that they will not run roughshod over the people and their right to self-government?  If judges are the police, then who will police the police?

The answer is troubling:  Lawyers.  The folks with entire books of jokes compiled in their honor, putting them at the bottoms of oceans and other unfavorable predicaments.  But these are all that stand in the way of willful activists who would seek to hijack our constitutions in order to impose their agendas.  There is no institutional protection from judges interpreting constitutional amendments to mean nearly anything they like.

Thus, those who would seek to keep the vital balance between the majoritarian and counter-majoritarian functions of our political system are those concerned with the training and fostering of principled lawyers committed to the sober interpretation of the law to mean what it was intended [understood] to mean, not what historians or sociologists or psychologists would argue it has come to mean.  Context changes, but the written word of the law does not.  Those committed to countering the counter-majoritarians also concern themselves with electing officials who would ensure that judges are appointed to the bench who would seek to do no more than interpret the law and fulfill their limited counter-majoritarian function, rather than effect policy change or serve a personal need to express empathy from the bench.

Put simply, and circling back to the question posed earlier, here’s how to know whether the Due Process or Equal Protection clauses compelled the conclusion that Prop 8 must be overturned:  [According to the public meaning of the words of the Fourteenth Amendment at the time Congress ratified them in 1868, could it be said that] Did the Congress that ratified the Fourteenth Amendment in 1868 intend those clauses to mean that marriage must be redefined to include same-sex partners?  And here’s how to know whether the Commerce Clause permits the government to compel every American to purchase health insurance:  [According to the public meaning of the words of section 8 of the Constitution at the time the delegates to the Philadelphia Convention ratified them in 1788, [(which gave] Did the Philadelphia Convention delegates who ratified the Constitution in 1788, in giving Congress the power “to regulate Commerce with foreign Nations, and among the several States”),]  intend to could it be said that Congress could require, under threat of force, the participation in certain government-defined private economic activity?

The answers are self-evident.  In fact, it really doesn’t take a lawyer to answer those questions.  It takes lawyers to launch into esoteric theories of law and linguistics and philosophy to create a lot of confusion over what might otherwise be a fairly straightforward application of words.  It takes still more lawyers, then, to undo the mischief caused by the first bunch.

[UPDATE: Jason Kuznicki’s response to my post informed me of a correction I need to note. This is my response in the comments to his post:

First, I must correct myself.  I negligently aligned myself with the brand of originalism that is taken up with intent rather than meaning.  Please accept that I in fact subscribe to the position that the words should take their objective meaning they were reasonably understood to have at the time, rather than whatever subjective meaning their individual ratifiers may have happened to understand.  If the ratifiers of amendments used their words negligently (as I did in my post), it is of no consequence to the legal effect of the resulting, duly-enacted amendment.

With that said, many of the problems Kuznicki identifies are still there:  our Constitution might have to be, alas, amended again at some point in the future.  A difficult prospect, but by no means impossible.  Some hardship may be wrought on some folks.  But I submit that refashioning our judiciary into a second-string legislature as we have in the past century has wrought much more hardship in other ways by stripping our right of self-governance.

Kuznicki also assumes that none of the positive social changes that have occurred in our country would have been possible without the legislative-judiciary we have commissioned.  I disagree.  Just because context changes and new machinations exist in our world that did not exist in the years our Constitution and amendments were ratified, this does not mean the words have no application.  “Commerce” affects future widgets as well as past and present widgets—no matter that they did not exist at the time the word “commerce” was ratified.

One would be hard pressed to defend the position that included in one’s “liberties” as the word is used in the Fourteenth Amendment is the right of same-sex couples to force, by judicial fiat, the people of a state to change the deliberately chosen parameters of the social institution of marriage.  Some folks’ definition of “liberty” may have changed since 1868, but we owe fealty to the meaning of the word as it was enacted, not as we would like it to be.]

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Written by Tim Kowal

August 5, 2010 at 11:04 pm

5 Responses

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  1. […] morning I was surprised to find Tim Kowal — one of my few followers on Twitter — defending the constitutionality of laws that discriminate against Boy Scouts, organ donors, Israeli-Americans, and anyone who has ever worn […]

  2. “Americans are fond of describing their system of government as having “checks and balances.” It is probably the entire distillation of most high school students’ understanding of our political system.”

    You give way too much credit to our high schools. For the past two semesters, I have given my students a warm-up quiz to introduce our novel, “1984.” One of the questions is “Where do rights come from?” The number one answer, by far: “government.” I can count on one hand the number of students who have even approximated our Founders’ answer…


    August 6, 2010 at 1:27 pm

    • I can’t be too judgmental. I had AP Government in high school, and I don’t know that I remember a single thing I learned. I just had no interest in civics at that age. Or for several years thereafter, for that matter, unfortunately.

      Anyway, my suggestion was just that “checks and balances” and “executive, legislative, and judicial” are probably the most likely responses an American young person will gurgle out upon being asked about how their government works.

      Tim Kowal

      August 6, 2010 at 11:42 pm

  3. I have been wondering if the decision seems so activist, at least to me, because the court awarded the wrong remedy – one I don’t think it had the power to order. What if the court had simply held that it violated equal protection for the state to confer certain benefits on one state-sanctioned relationship (marriage) that was not conferred on another state-sanctioned relationship (civil unions/domestic partnerships) similarly situated? As a result of so finding, it could have ordered that the state was required to give the same tax benefits, or spousal privileges, or powers of attorney, or inheritance rights, etc. to all of the state-sanctioned relationships without the court taking it upon itself to redefine a word the people voted should not be redefined. I seems to me that holding would have been a better one upon first blush.

    I started thinking about this while considering the courts’ role in striking down race-based discriminatory statutes. The remedy granted in correcting laws that gave preferences to whites was not to deem everyone “white” but, rather, to order the state to treat everyone the same (or sometimes to treat nonwhites better than whites).

    I have not thought this all the way through – stupid trial prep – so it may all fall apart upon further analysis, but I wanted to get your thoughts on the constitutionality of the hypothetical decision described above. Would it be as galling as the one we got?

    Of course, the right path is to get the people to acknowledge and vote the state out of the relationship sanctioning business, but that is a topic for another day.


    August 15, 2010 at 2:35 pm

    • One question is whether the state must treat all “state-sanctioned relationships” the same, or whether it may recognize and sanction different kinds of relationships and treat them differently. Obviously, it’s the latter. There are marital relationships, doctor-patient relationships, priest-penitent relationships, parent-child, employer-employee, and on and on. Each of these get some different consideration in the law, on the basis of the different purposes and concerns of each of them.

      Do same-sex romantic relationships and opposite sex romantic relationships have different concerns? Certainly. I take your question to be, if the state “recognizes” both, can we then assume they are “similarly situated,” ostensibly on the basis they are both “romantic,” and thus preclude the state from treating them differently? My response is, I don’t think just because they are “romantic” they are “similarly situated.” There are many additional concerns, including the fact that men and women typically can procreate—an important end for the state to promote—whereas same sex couples by definition cannot procreate without involving a third person.

      Your second point is interesting. It was basically conceded in the Perry ruling that California domestic partnership law effectively provided all the same entitlements and rights as marriage, but that this wasn’t good enough because it still deprived same sex couples of the social acceptance that can be obtained by redefining the social institution known for thousands of years by the term “marriage.” Similarly, we could imagine what might happen if a court, in striking down a law that provided services to “whites only,” redefined the word “whites” to mean “persons of “Caucasian or African descent.” Perhaps the plaintiff could have argued that blacks would never have the same social status as whites, and thus, by judicial fiat, were entitled to be included among “whites” rather than merely given the same rights. Sooner or later, we have to accept that the way people regard others neither can nor should be manipulated through the courts.

      Tim Kowal

      August 15, 2010 at 6:45 pm

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