When Politicians Give Us More than We Can Take
Within this current political cycle, “we the people” have been relegated to spectators—indeed, in Obama’s words, we “don’t know how to drive”—on major social and domestic issues. California’s legislators went over the heads of 72% of their constituents and enacted an $11 billion tax hike. Obamacare was opposed by most Americans after its passage, and many favored repeal. Perry v. Schwarzenegger overturned a popularly enacted constitutional amendment concerning the people’s definition of marriage, even though previous Supreme Court precedent stated that this did not even present a reviewable federal question. NY mayor Bloomberg announced that opponents to the Cordoba House’s planned mosque a stone’s throw from Ground Zero should be “ashamed” of themselves. And Democrats appear to be planning to pass an unpopular new “carbon tax” regulatory system during the “lame duck” session after the November elections. [And I almost forgot about the Arizona immigration law, also struck down by a lifetime-tenured district judge.]
This is more than just bad politics. The rift between the rulers and the ruled is not meant to be as wide as our current officials have made it. In an enlightened constitutional republic such as ours, fealty to the law is achieved through the fact that the law is in fact derived of, by, and for us. We accept the law as legitimate because it is of our own making. Our founders designed our republic to achieve legitimacy through this same principle. As James Madison noted during the debates on the Constitution, the great Athenian lawmaker, Solon, first expressed the problem of maintaining legitimacy in the law in a mixed regime where professional lawmakers—an oligarchy—were given the job of designing and enacting the laws that would rule the people. When asked whether he had given to the Athenians the best laws he could devise, Solon replied that he had only given them “the best they w[ou]ld receive.’”
Counter-majoritarian policies are necessary from time to time to check the people when they stray in their lawmaking by impinging areas of human life so essential and fundamental that, to fail to push back against the principle of self-rule, would undermine the possibility of our continued social and political co-existence. However, our leaders ignore millennia-old tenets of republican (small “r”) governance by insisting on perfection through the law, rather than legitimacy through respect for the will of the people.