Threats of tyranny, and the role of the majority in America
I’m troubled, albeit slightly, by a federal judge’s ruling last week declaring California’s ban on same-sex marriage unconstitutional.
But the cause for my dismay is not that Judge Vaughn Walker sided with those people who believe gay marriage should be legal.
I happen to be one of those people.
I don’t care if two people of the same gender get married.
And it bothers me not a whit if the government deems this legal arrangement a marriage rather than a civil union or some other silly euphemism.
So far as I can tell, society would do well to encourage pairs of adults — any pair of adults — to make lifetime commitments to love one another and to raise their children in a nurturing environment.
The greater problem in this country, it seems to me, is not that too many people want to get married but that too many of us can’t stay married.(I speak here with experience, having endured a divorce.)
Anyway, the group I’m a trifle worried about, in the aftermath of Walker’s decision, is considerably larger than the cadre of gay marriage proponents.
I belong to that club, too.
And we have, some of us, been demeaned many times, and in many states, over the past few decades. Walker’s denunciation of California’s Proposition 8, which 52 percent of the state’s voters approved two years ago, is merely the latest instance. And because it deals with a particularly divisive issue, the judge’s ruling has precipitated a predictable torrent of publicity.
Walker’s action also reminds us that a notion sometimes billed as a bedrock foundation of America’s electoral system — the simple idea that, with certain significant exceptions such as presidential races, the majority rules — is in fact riddled with cracks which seem to be gradually but inexorably widening.
In reality the majority’s reign nowadays can be quite brief, toppled in a coup led by men and women clad in robes.
This, of course, is neither an accident nor evidence of a budding legal oligarchy.
The wise architects who designed our government bestowed on the judicial branch the power to overrule not only elected officials, but also voters.
The judiciary is supposed to exercise this authority to make sure neither lawmakers nor voters flout the Constitution.
Which, in theory at least, seems to me one of the more reasonable of those checks and balances we learned about in civics class.
And yet I also detect in the air a lingering bitter residue whenever, as happened last week, a single judge or panel of judges invalidates the result of an election freely and fairly conducted.
I wish we could figure out how to spare millions of voters the frustration of finding out, some months or years later, that they might as well have tossed their ballots into the fireplace as filled them out like responsible citizens are supposed to do.
It takes a very few of these cases, I fear, to spawn not just resentment but, more distressing to anybody who loves democracy, a level of cynicism that could persuade some people to stop voting altogether.
Sadly, I can’t offer any solution to this baffling dilemma.
I suppose we could add to judges’ arsenal a sort of pre-emptive strike weapon — require that the courts not only consider the constitutionality of all measures before they’re added to the ballot, but also give judges the authority to cancel legally shaky ones before they ever get to voters.
Yet that seems to me too draconian to pass muster with Americans.
(It certainly fails to pass mine.)
That the judicial branch possesses post-election override authority, which is the current situation, is as I said a sound enough theory.
Voters, whose preferences tend to fluctuate as wildly as a wind vane in a heavy gale, have been known to endorse schemes which aren’t, strictly speaking, legal.
In 2008, for instance, 57 percent of Arkansas voters approved a state law prohibiting unmarried couples from adopting children or taking in foster kids.
As in the California Prop 8 case, a judge ruled the Arkansas law unconstitutional. And rightly so, it seems to me.
I can accept the premise that a completely unrestrained electorate, one able to exert its will on any legal matter, and with no recourse available to the minority, has at least the potential to tilt society toward a sort of totalitarianism.
de Tocqueville, that keen observer of America, is credited with coining the phrase that exemplifies this fear, his famous “tyranny of the majority.”
And yet, even as I acknowledge the validity of that phrase, I’m nagged by the knowledge that what it means, when subjected to the harsh glare of reality, is that a single person ought to be able to overrule millions if that individual concludes that the millions have betrayed the Constitution.
Which on the face of it seems both unfair and, really, the epitome of arrogance.
Except, I remind myself, the actual equation tends to be quite different from that oversimplified 1-judge-denies-millions-of-voters example.
In the case of Prop 8, for instance, 7 million Californians voted for the initiative that defines marriage as between one man and one woman.
But 6.4 million other voters opposed the proposition.
Which means Judge Walker upheld the beliefs of almost as many voters as he thwarted.
This is no consolation, I’m sure, to 7 million Californians.
Or, come to that, to people who believe the majority, its tyrannical tendencies notwithstanding, deserves rather more sanctity than it’s being afforded in the nation’s courts.
The clearest lesson to be learned, perhaps, from the Prop 8 case is that voters ought to proceed with caution when casting their ballot on any measure which seeks to distribute public privileges to people based on their most private of legal activities.