Proposition 8, the Balance of Power, and Limited Government

Seth Long has an interesting post on the judicial overturn of California's Proposition 8. He points out that a majority of the 80% of California voters who cast ballots chose to end same-sex marriage in the state. Therefore, this represented the democratic will of the majority. In overturning the proposition, the 9th Circuit Court of Appeals denied the popular will by fiat.

I believe that Long is touching on some of the central concepts in the American political system here: the ideal of majority will and that of individual rights.  One of the consistent problems of democracy is the potential for the tyranny of the majority.  Under a purely democratic system, if a majority of people want to disenfranchise a minority they can do so: the will of the majority holds, whatever it may be. In the early years of the Republic, concerns of majority tyranny frequently concerned debtors voting their interests over those of creditors, which could dispossess the creditors of legitimately acquired assets and create an unsound economic system.  This may still be a problem: T.H. Marshall's idea of political democracy leading to economic democracy could be interpreted as majorities dispossessing minorities by voting to redistribute resources.

The members of the founding generation had two responses to the problem of majority tyranny.  One was the balance of power or mixed system response. Derived from Aristotle, this involved trying to balance the virtues and vices of democracy, aristocracy, and monarchy by incorporating elements of each. John Adams, uneasy about both democratic excess and elite power, was the foremost exponent of the balance of power approach. Interestingly, Adams and those of similar mind did not see the judiciary, but the upper house of the legislature as the aristocratic element in American government. This was one of the reasons that until the early twentieth century senators were appointed by state legislatures, rather than directly elected by the people. The senate was supposed to be a brake on democracy, rather than an expression of it.

However, the main structural limitation on democracy historically came to be the third branch of government, the judiciary, as the concept of judicial review developed from the time of John Marshall onward. Through judicial review, the courts exercise a veto over legislation because the courts decide whether a law or policy enacted by the people or their representatives is consistent with the Constitution. While a law or policy may be judged unconstitutional on a variety of grounds, violation of constitutionally protected rights has stood out as the most prominent. This has created a tendency for the courts to extend the idea of constitutional rights and for parties who cannot realize their political ends democratically to urge the courts to re-define those ends as rights.  If, for example, marriage is a matter of legitimate state policy, then the democratically elected representatives of states (or the voters directly, in a proposition system) can define marriage in the way that the representatives and voters believe will best serve the polity. If marriage (to anyone or anything one chooses) is a matter of individual right, then the aristocratic judicial branch can intervene to annul the will of the majority.  This is why same-sex marriage opponents have generally sought their goals through voting and legislation, while proponents have generally sought theirs through the courts.

The problem in the balance of power response to the problem of majority rule lies in the question of where to find the proper balance. Clearly, the courts have increased the number of rights people have, giving the courts ever greater power, creating the danger of a "kritocracy," or absolute rule of judges. There is also the problem of where judges find these rights.  The founders were heir to a natural law perspective, but contemporary courts have leaned more toward the utilitarian view that rights are defined by social ends. I argue that the "compelling national interest" defense of affirmative action is a utilitarian approach to legal rights. Race-based preferences, according to this defense, can be held constitutional and efforts to end those preferences can be held unconstitutional because the preferences are assumed to serve a social end. This makes rights dependent on the social and political program of the judges. In the case of defining marriage, I think judges sometimes lean toward an unrecognized expanded version of a natural law concept of a right (people have the inherent right to be happy, getting married as they choose makes them happy [supposedly], therefore all people have the right to marry as they chose) and sometimes toward a utilitarian concept of what judges believe will lead to a nondiscriminatory society.

The other response among the founders of the Republic to the problem of majority tyranny was limited government. If Adams leaned more toward balancing the powers of government, Thomas Jefferson leaned more toward limiting what government can do.  This response was essentially an argument for an equality of citizens based on independence. Jefferson in the elegance of Monticello was the equal of the poor yeoman because each could live on his own without hierarchical dependence. This response may be the most congenial to Long who would ideally prefer that government stay out of marriage altogether.

It is true that we all generally like government intervention when the government is on our side and tend to become anti-government pursues policies we don't like. Ultimately, though, I think the same-sex marriage debate does not easily fit into a "left-right" political dichotomy or of supporters of individual liberty versus supporters of government interference.  Instead, I think this issue involves a range of perspectives. There are traditionalists, who believe that marriage as historically defined is correct and should be maintained by government and that judicial interference simply involves the courts imposing the wrong policies. There are democratic institutionalists, who believe that majorities define their legal and social institutions, and that aristocratic courts illegitimately extend individual rights in violation of those institutions.  There are consistent libertarians, who follow the eloquent formulation of Jimmy McMillan on this topic ("If you want to marry your shoe, I'll marry you").  There are limited civil libertarians, who believe that the courts should mandate the specific kinds of rights that those limited libertarians favor. Finally, there are group-rights advocates dedicated to the advancement of  group interests and willing to employ whatever legislative or judicial means will advance those interests.