Liberty, Democracy and Gay Marriage

Dissenting from the Supreme Court’s recent decision legalizing gay marriage nationwide, Chief Justice John Roberts wrote,

Those who founded our country would not recognize the majority’s conception of the judicial role. They after all risked their lives and fortunes for the precious right to govern themselves. They would never have imagined yielding that right on a question of social policy to unaccountable and unelected judges.

In his own separate dissent, Justice Antonin Scalia wrote,

This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.

On the other side of the debate, a five-justice majority held that a person’s right to marry is so fundamental that it cannot be constrained by democratic processes. Justice Anthony Kennedy sums up the relationship between liberty and democracy embodied in the nation’s charter:

…[T]he Constitution contemplates that democracy is the appropriate process for change, so long as that process does not abridge fundamental rights.

As is often the case, both the Court’s prevailing liberals and its dissenting conservatives lay claim to the mantle of the nation’s founders. But which of them has it right?

Before 1776 Americans were British subjects, and regarded themselves as fortunate, compared to French and Spanish subjects, because of Britain’s longstanding liberal traditions. America’s pilgrims brought the principles embodied in the Magna Carta with them to the new world, including an expansive notion of individual liberty, safeguarded significantly by an independent judiciary.

Compared to liberty, democracy in 18th century Europe was relatively unknown. Scalia’s contention – that self-governance was 18th century America’s most valued liberty – isnt merely at odds with history, but with the plain language of the Declaration of Independence as well. Though the word “right” occurs ten times in the Declaration, it is never associated with the right to vote. The rights of rebellion and self-governance are not characterized as “unalienable” absolutes, but are conditioned upon a government’s failure to secure a people’s absolute rights to “life, liberty and the pursuit of happiness.” The term “democracy” is nowhere to be found.

The American Revolution was not born of a naked desire for self-governance. The text of the Declaration of Independence explains why the nation’s founders were driven to “dissolve the political bands” holding them to Great Britain: the king was running roughshod over their liberties. The bulk of the Declaration is a litany of complaints against an illiberal monarch.

Once one appreciates that the American Revolution was principally about liberty – that democracy was seized upon afterward as the best means toward that end – the particular form of the US Constitution makes perfect sense. Fearing that liberalism might be lost in the transition from monarchy to republic, the Constitution painstakingly limits democracy.

The original Constitution only granted suffrage to white men with property. The only government body they were permitted to elect directly was the House of Representatives. Senators were appointed by state governments. Americans still dont vote directly for the president, but for an intermediary body (the electoral college). And judges are still appointed by the president to lifelong terms.

To constrain democracy further, a Bill of Rights was appended to the Constitution. After amendments one through eight – in which 25 distinct rights are set above and beyond the reach of the majority’s will – the ninth amendment follows as a blank check for liberty for future generations:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Thus one cannot infer from the absence of a given right from the Constitution (like marriage – or gay marriage) that that right does not exist.

American liberty was not born in the American Revolution – it was carried over from a much older English liberal tradition that predates American democracy by several centuries. Democracy was a grand experiment, subject to considerable and manifold limits, to ensure that the prize, liberalism, would endure under a new form of government.

The US Constitution most acutely restricts the power and reach of the majority where it concerns our most basic rights – to prevent a majority from becoming a tyrant itself. Contrary to Roberts’ assertions, for centuries before the American Revolution, and centuries since, courts have stood as a bulwark against the day’s oppressors, upholding fundamental rights against usurpations by kings and majorities alike.

Conservative complaints that the Court’s decision is anti-democratic are accurate, but misplaced. Democracy was born after the American Revolution as a means toward liberalism – not as an end in its own right. Liberty is the older tradition, which democracy was established to maintain and defend – not undermine. When the two are at loggerheads, democracy must yield.

 

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Editor’s note: The Field Guide is on summer vacay – we’ll be back with new material in mid-August.

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