In the midst of the Supreme Court’s same-sex marriage ruling, a decision that squeaked by on a 5-4 vote, the main message from the dissenters was that the majority opinion is undemocratic. All four dissenting justices—Roberts, Scalia, Thomas, and Alito—wrote opinions, and a common theme among them was the complaint that the majority justices had bypassed the democratic process and imposed their own views on the nation.
“Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today,” wrote Chief Justice John Roberts. “Five lawyers have closed debate and enacted their own vision of marriage as a matter of constitutional law.” This amounts to “stealing the issue from the people,” Roberts insisted.
Making the same point but in his own acerbic style, Justice Scalia decried the majority: “A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to call itself a democracy.” With sarcasm and ridicule, Scalia criticized the majority opinion for its “pretentious” language that found a new right in the Constitution that “lesser legal minds” such as Oliver Wendell Holmes, Jr. and Louis Brandeis had never seen. Scalia argued that he has no objection to society redefining the notion of rights and liberties, but that such changes should come via legislation or constitutional amendment.
Since both sides seem to agree that society’s notion of fundamental rights can evolve and disagree only on the mechanism for identifying them, it would be worthwhile to consider the pros and cons of the two general views. If the American democratic process is sufficient for defining and securing evolving standards of liberty and equality, as the dissenters claim, then their accusations of judicial tyranny should perhaps be taken seriously. What we find, however, is that reliance on America’s legislative channels alone for such matters is neither desirable nor sufficient.
The first problem, which is apparent to anyone with even an elementary understanding of civics, is that fundamental notions of liberty and equality often protect unpopular minorities. Putting the fate of minorities into the hands of the majority is hardly a formula for securing justice. Doing so is even less defensible when, as in the case of allowing same-sex couples to marry, the redefinition of rights does nothing to infringe on the rights of anyone else.
The real problem with the cry for democracy from the right side of the bench, however, is that the Constitution is decidedly resistant to democratic change. This point has been raised by many commentators, but rarely more forcibly than in Seth Ackerman’s subtly entitled article, “Burn the Constitution.” As Ackerman points out, in many ways the Constitution is designed to repress popular will, not reflect it.
Unlike most other democracies, for example, American legislative measures must usually meet the approval of three separate entities—House, Senate, and president—in order to become law. Making achievement of the people’s will even harder is the fact that, due to the Senate’s structure of only electing one-third of its body every two years, no single election can result in unseating a majority of all three entities.
Moreover, because the Senate allots two seats for each state regardless of population, it is far from democratic. Ackerman points out that, because of this disproportionate design, the Senate allows the will of just 16 percent of the population to overrule that of the other 84 percent. This, Ackerman argues, makes the Senate an “undemocratic monstrosity.” Adding to the Senate’s undemocratic flaws is the filibuster, which has been used with lethal effect by conservatives (during the civil rights era, for example), where one or a few senators could bring the legislative process to a grinding halt through sheer defiance.
Even the House, which is intended to be the chamber closer to the interests of the people rather than the states, has evolved away from responsive democracy. In the founding era, each House district had a population of about 35,000, making elected representatives responsive to even small groups of individual constituents. Today, each House district has a population of about 700,000, thus greatly diminishing the power of ordinary people.
As for the executive branch, the Electoral College not only makes a minority-elected president possible, but it also channels political attention and activity toward a few swing states.
All of the above relates to ordinary legislation, but things get only worse if we consider the noble notion, as suggested by the same-sex marriage dissenters, of amending the Constitution to recognize new fundamental rights through the democratic process. To do this requires winning approval of thirty-nine separate state legislatures, Ackerman points out, consisting of about seventy-eight different legislative chambers. Good luck with that.
Given these realities, it’s little wonder that Felix Frankfurter, who sat on the Supreme Court from 1938 to 1962, called the United States “the most reactionary country in the world.” Indeed, considering this structure of American democracy, where intensive effort is needed to craft and pass legislation, it’s quite understandable that government caters to large corporations and industries. Only such large institutional interests have the resources to pay armies of lawyers and lobbyists needed to navigate such a complex system government, whereas ordinary humans are powerless. Ours is a plutocratic system by design.
All of this points to the need for judicial involvement in recognizing evolving rights and liberties. This does not mean that judges should simply declare the law to be what they believe it should be, but neither does it mean, as Scalia and his companions suggest, that judges should impose the law as it would have been applied when the Constitution was drafted over two centuries ago (or when the Fourteenth Amendment was drafted shortly after the Civil War).
Instead, when it comes to evolving rights, what judges should do is fairly assess the social landscape to consider how the underlying principles of the Constitution must be applied today—not based on the individual judge’s personal beliefs, but based on what, objectively, the Constitution’s underlying principles require in light of the evidence presented.
Gay rights provide us with a good example. Knowing what we do today—that same-sex orientation is natural and poses no harm to anyone; that anti-gay bias has produced enormous suffering; that gays and lesbians have emerged to become a visible demographic in our society, a segment of the population that is as productive and valuable as any other; and numerous other factors—our longstanding principles of liberty and equality can no longer justify legally sanctioned discrimination against individuals of same-sex orientation. Many of these facts would not have been known two centuries ago, or even a century ago, but they are now, and therefore a perceptive and fair judge, applying constitutional principles to such facts, would recognize the validity of equal rights for gays and lesbians regardless of the judge’s personal views toward homosexuality.
It’s noteworthy that declaring marriage equality for same-sex couples does not even run contrary to the will of the majority in this country, since polls indicate that approval of marriage equality has passed the majority milestone. In fact, today’s minority resistance to marriage equality can be found in two pockets, one geographic and one social. Each pocket of resistance is relevant to a fair judge’s analysis of the issue.
Geographically, the resistance is strongest in so-called red states, mostly in the South and Midwest. From a standpoint of justice, the geographic resistance creates an actual barrier to the freedom of gays and lesbians, who may wish to move from one state to another but might find themselves unmarried if they moved to the wrong state. This points to the need for judicial involvement to correct the irrational prejudice of the regional opposition.
Socially, resistance to marriage equality is strongest among conservative Christians, but nobody is trying to make conservative Christians marry gay people. The notion that religious views, even of the majority, should dictate the rights of others is foreign to the Constitution. Again, this points to the legitimacy of judicial recognition of the rights of gay people, who without judicial involvement are likely to face unfair, religion-based discrimination in sections of the country where religious conservatives dominate the democratic process.