Monday, August 09, 2010

Prop 8, James Madison and Majority Rule

Image ripped from Marko Ilic H/T Rojos

In the wake of Judge Vaughn Walker finding California's Prop 8 to be unconstitutional, we are treated to the predictable spectacle of hypocrisy on parade from politicos across the political spectrum including Newt Gingrich and Barack Obama.

The most compelling arguments against Judge Walker's ruling are premised on the notion that it violated majority rule. The argument takes a variety of forms: that a court overreaches when it substitutes its judgment for the clearly expressed judgment of a majority of voters; that it would be tactically better for same sex marriage proponents if was legalized by an electoral or legislative majority at either a state or federal level rather than judicial fiat; that it disrespects constitutional sanctity and founder's intent for majority rule. The argument is getting serious consideration across the blogosphere - some examples include The Crossed Pond, Ordinary Gentlemen, Andrew Sullivan, Allahpundit, Balloon Juice, Ann Althouse, Volokh Conspiracy, and others.

I am sympathetic to the preference for individual rights being protected by a popular majority and/or legislature as opposed to judicial means. Who would not? That said, I don’t think there is any basis for saying it is a decision that should not have been made by a judge. Let me hasten to state that I am not making a legal argument, as I am not qualified to do so, let us call this a constitutional/philosophical observation.

Our Constitution implicitly and explicitly establishes something of a hierarchy of rights and powers. Federal powers are specifically enumerated, with the power not delegated to the United States government by the Constitution reserved to the States. This clearly indicates a general preference for state's rights and powers. The preference for the superiority of majority rule can also be gleaned in the order that the branches of government are enumerated in the articles of the Constitution. First the democratic people’s House, then the republican Senate, then the executive (selected by a non-majoritarian electoral college), then the unelected judiciary. All would argue for the founder's obvious preference for and superiority of democratic majority decisions, and the state's exercise of power to that of the federal government.

But – then there is the Bill of Rights, without which the Constitution would never have been ratified. The enumeration of rights in the first 10 amendments is informed by a self-evident truth that all individuals are imbued with inalienable rights to life, liberty and pursuit of happiness - rights that are inalienable by kings, rights that are inalienable by majority rule. These rights are at the pinnacle of and/or transcend the entire hierarchy of preference of power found in the Constitution. The fundamental assertion of the Bill of Rights is that no power may abridge these rights – including a democratic majority at either the state or federal level. All branches of the federal government should regard protection of these rights against encroachment - regardless of source - as a primary responsibility.

Who better to speak to the limits of majority rule, than the architect of the Constitution - James Madison? In Federalist #10 he speaks directly to protecting rights from the majority:

When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed. Let me add that it is the great desideratum by which this form of government can be rescued from the opprobrium under which it has so long labored, and be recommended to the esteem and adoption of mankind.

By what means is this object attainable? Evidently by one of two only. Either the existence of the same passion or interest in a majority at the same time must be prevented, or the majority, having such coexistent passion or interest, must be rendered, by their number and local situation, unable to concert and carry into effect schemes of oppression.”

And again, in his speech at the Constitutional Convention introducing the Bill of Rights for consideration, Madison is clear about the limits of majority rule:

“But whatever may be the form which the several States have adopted in making declarations in favor of particular rights, the great object in view is to limit and qualify the powers of Government, by excepting out of the grant of power those cases in which the Government ought not to act, or to act only in a particular mode. They point these exceptions sometimes against the abuse of the Executive power, sometimes against the Legislative, and, in some cases, against the community itself; or, in other words, against the majority in favor of the minority.

In our Government it is, perhaps, less necessary to guard against the abuse in the Executive Department than any other; because it is not the stronger branch of the system, but the weaker: It therefore must be leveled against the Legislative, for it is the most powerful, and most likely to be abused, because it is under the least control. Hence, so far as a declaration of rights can tend to prevent the exercise of undue power, it cannot be doubted but such declaration is proper. But I confess that I do conceive, that in a Government modified like this of the United States, the great danger lies rather in the abuse of the community than in the Legislative body. The prescriptions in favor of liberty ought to be leveled against that quarter where the greatest danger lies, namely, that which possesses the highest prerogative of power. But this is not found in either the Executive or Legislative departments of Government, but in the body of the people, operating by the majority against the minority.

So what should happen when the majority acts against a minority, as in Proposition 8? Particularly when we see the executive branch make a craven political decision to not act in support of the minority, and legislators at both the federal and state level unwilling to act in contradiction to the majority view? In such a case, it seems obvious that the judiciary is the last firewall to protect our liberty, and it is only the judiciary that can preserve our rights against the will of the majority. In such a case, not only is judicial action acceptable, it is necessary, even when it means substituting judicial fiat for democratic majority or legislative action. Self evident inalienable individual rights should trump the majority every time.

I suppose that one can argue that same sex marriage does not fall into the category of a self evident inalienable right to pursue happiness. This is where we probably cross the line from a constitutional argument to a legal argument. But on the broader question - whether a judge should substitute their judgment for the judgment of a majority? Yes they should. I was pleased with Judge Walker’s decision, as I saw Prop 8 as a clear attempt by the majority to impinge on the rights of a minority. Judge Vaughn Walker did his job and did it well.

Now if only our Congress would do their job, reassert their constitutional authority as a co-equal branch of government and begin to reel back in the ever expanding role of the Unitary Executive and our Imperial Presidency, then we might return to the founder's intent of an executive branch that "is not the stronger branch of the system, but the weaker" as also asserted by James Madison.

Divided and Balanced.™
Now that is fair.


Tully said...

A judge should substitute his informed knowledge of the law for the popular opinion, not simply exercise "judicial fiat." My problem with Walker's decision is that it follows the "activist" form of judicial opinion, relying less on the law itself than on a creatively rationalized interpretation of the Constitution in order to discover a previously non-existent "right." It pains me to say it, but only by changing the historical legal understanding of the definition of marriage does one reach the result. No one is depriving gays of the existing right to traditional marriage as understood in law -- the right to marry someone of the opposite sex -- it's simply not been a very useful right to them, much like my (theoretical) right to an abortion is of no use to me.

I applaud the general result (I worked for years as part of a group to keep our state from passing a DOMA amendment -- in the end, we failed) but I don't mistake my approval of the result as meaning the ruling was correctly decided as a matter of law.

"Self evident inalienable individual rights should trump the majority every time."

Note that the phrase "inalienable rights" does not come from the Constitution, and is open to extremely subjective interpretation. And "self-evident?" Heh. Self-evident to whom, and in what historical context? Would the writers of the 14th Amendment have found it "self-evident?" I want gays (hell, ALL consenting adults, gay, poly, etc.) to have the right to make their own damn domestic arrangments, but I cannot applaud destroying the rational basis of law itself in order to do so.

Creative judicial interpretation threatens to make the law mean whatever a passionate and vocal activist faction wants it to mean, rather than what it says. I fear "burning down the village in order to save it."

Expect a 5-4 SCOTUS decision, but don't bet on which way it swings. The Prop 8 people put on a haphazard defense in court, but the 14th Amendment basis for the decision is shaky under any but the activist school of judicial thought, and the judge's refutation of the anti side's arguments on essentially the grounds that the right exists under the 14th because the anti's are raving bigots is not exactly a soaring high point in judicial scholarship and reasoning.

mw said...

I understand your point and, as I said in the post, I am not making a legal argument, as I do not feel qualified to do so. I do see a lot of good constitutional lawyers coming down on both sides of this argument across the intertubes, so will be happy to leave the legal resolution to the courts. As you say, it'll probably be a 5-4 and a coin flip which way it goes.

I will respond to this bit - from the perspective of constitutional/philosophical framing that I couched this post:

'Note that the phrase "unalienable rights" does not come from the Constitution, and is open to extremely subjective interpretation. And "self-evident?" Heh. Self-evident to whom, and in what historical context? Would the writers of the 14th Amendment have found it "self-evident?"'- Tully

True. But I never said it was in the Constitution. As I am sure you know, it is a concept that is central to and lifted from the Declaration of Independence:

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness."

I was pretty careful about my choice of words. I said the Bill of Rights was "informed" by this concept. I might have said as well that the Bill of Rights was demanded by this concept. The phrase is not in the Constitution, but the concept is embedded in the Bill of Rights, without which there would have been no Constitution.

Does the concept of what entails a "self-evident unalienable right to pursue happiness" lend itself to subjective interpretation that will vary depending on historical context over time? Certainly. But there is plenty of precedent for our culture and the law to adjust to shifting interpretation of the concept. Note that there were statutes on the books of many state that applied a religious test to holders of public office, and slavery persisted despite the freedoms guaranteed in the Constitution. These things changed over time. Sometimes by executive edict, sometimes by legislation, sometimes, by judicial ruling.

I am not equating same-sex marriage with either civil rights or religious freedom - it obviously is not of the same importance or in the same category. However, I do think it legitimately is encompassed by that same philosophical foundation that was the rationale for declaring ourselves an independent country, and is underlying the Bill of Rights to the Constitution. Slavery and religious persecution by the state falls under a self-evident unalienable right to life and liberty. I can easily see how same-sex marriage falls under the concept of a self-evident unalienable right to pursue happiness.

[NOTE: In this comment I corrected the spelling of "inalienable" to "unalienable" (as it is written in the DOI) and will do so eventually in the post.]