Gay marriage and basic civics

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Glenn Greenwald, CommonDreams

There have been many times that we’ve had discussions with visitors to TheZoo about why the majority doesn’t always rule in this country.  It really has nothing to do with whether or not something is fair.  The majority may be against gay marriage or other issues, but our Constitution is set up to protect minority rights against the majority.  It’s the job of the courts to overturn laws passed, by the people or by legislation, which infringe on the rights of the minority. 

Glenn Greenwald explains it very well in his response to an article by Ben Wittes in The New Republic (sorry, I’m not linking to it), which criticizes the California Supreme Court for striking down that state’s discriminatory marriage law.  Wittes expresses his concern about the court getting involved in overturning the law, crying out that the majority of Californians supported it, and the judges are interfering with Democracy!  This, as we all know, and as Greenwald so clearly explains, is NOT Democracy.

[Wittes'] reasoning — that it undermines “democracy” and constitutes judicial tyranny when a court strikes down a popular law — is so pervasive every time there is a controversial court decision. But it is as woefully misinformed as it is common. That a law invalidated by a court is supported by a large majority is not an argument supporting the conclusion that the court’s decision was wrong. Central to our system of government is the premise that there are laws which even the largest majorities are prohibited from enacting because such laws violate the constitutional rights of minorities. Thus, the percentage of people who support the law in question, and how lengthy and painstaking the process was that led to the law’s enactment, is totally irrelevant in assessing the propriety of a court decision striking down that law on constitutional grounds.

Contrary to Wittes’ extremely confused argument, a court striking down a law supported by large majorities is not antithetical to our system of government. Such a judicial act is central to our system of government. That’s because, strictly speaking, the U.S. is not a “democracy” as much as it a “constitutional republic,” precisely because constitutional guarantees trump democratic majorities. This is all just seventh-grade civics, something that the Brookings scholar and those condemning the California court’s decision on similar grounds seem to have forgotten.

The duty — the central obligation — of judges faithfully applying the law and fulfilling their core duties is to strike down laws that violate the Constitution, without regard to what percentage of the population supports that law, and without regard to whether it would be “better” in some political sense if democratic majorities some day got around to changing their minds about it. It’s perfectly appropriate for, say, marriage equality advocates or political candidates to take into account whether it would be preferable, in some political or strategic sense, to achieve gay marriage incrementally or legislatively, only once there is majority support for it. But that is a completely inappropriate factor for a judge to consider, because the judge’s sole consideration is whether the law is consistent with Constitutional protections.

Alexander Hamilton, in defining the core function of federal judges in Federalist 78, explained this as clearly as it could be explained (though apparently not clearly enough for Wittes):

wherever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.

Fantastic.

Read the whole article here. 

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