A Stitch in Haste

This op-ed was published one week ago, but I wanted to weigh in on it. Can you guess who wrote it?

The California Supreme Court will uphold Proposition 8, the ban on same-sex marriage passed by the state’s voters in November. It is a decision that progressives ought to welcome.
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[T]he court’s rationale will almost certainly strengthen a fundamental tenet of the progressive movement: the right of ordinary citizens to maintain authority over their state constitutions.
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State courts stand at the intersection where constitutional law meets direct democracy. Indeed, the progressive movement engineered the traffic pattern. … But every state constitutional court must acknowledge that in a system that preserves the right of citizens to amend their constitutions, a judicial decision may be the opening argument in a process that preserves the ultimate constitutional authority of the people.

But for the repeated use of the word “progressive,” one could easily suspect that the piece was written by Kenneth Starr. The worldview undergirding the piece is essentially indistinguishable from Starr’s arguments before the California Supreme Court defending Proposition 8.

In fact, the piece was written by Jeff Amestoy, former chief justice of the Vermont Supreme Court and author of Baker v. Vermont, the 1999 opinion that led to the nation’s first civil union statute. (More on Vermont in Part Two.)

While cloaked in lofty rhetoric, Amestoy’s piece is deeply disappointing — and deeply disturbing.

Disappointing, not only because it argues in favor of Prop 8. Not only because it ignores the fact that a popular vote generally does not reflect “the will of the majority,” but merely a majority of those who can and do vote (which often turns out to be a puny minority — see this old post).

No, the piece is also disappointing because it shows yet again the timidity of judges who not only buy into the notion of “deference,” either to legislatures or plebiscites, but who also refuse to entertain, indeed completely ignore, the counter-majoritarian difficulty and its relation to the notion of sovereign (i.e., “inalienable”) individual rights.

It’s quite simple, really: To insist that there is, at least asymptotically, an “ultimate constitutional authority of the people” is to say that the only true right is the right of the mob to be a mob. It is to disregard, recklessly, the entire history of the founding of this nation. It is, bottom line, to pretend that the Declaration of Independence was never written.

Amestoy’s piece is also disturbing, and not just disappointing, in that his rationalization of unbridled majoritarianism is so unapologetically consequentialist. Sure, Amestoy acknowledges, direct democracy has resulted in bigot amendments in about half the states. But those will erode in time. And besides, look at how much “our side” (i.e., the progressive movement) has achieved with it. We’ve beaten reactionary conservatives more than they’ve beaten us. So if we predict that we can still keep beating them in issues beyond same-sex marriage, then why would we want to curtail direct democracy? Why limit mob rule today if we’re likely to be the mob tomorrow?

There is one and only one modern, civilized, American theory of jurisprudence and statecraft: Respect for the structures and processes laid down in constitutions is a necessary — but not a sufficient — condition for the legitimacy of governmental action. The sufficient condition is instead respect for individual rights, including the individual right to equal protection under law.

The statement, “the will of the people must be obeyed” is an exogenous constraint, not a normative pronouncement. It is a fact, not a conclusion. It is, more often than not, something to be lamented — like mortality or the scarcity of resources. It is rarely something to be celebrated for its own sake.

A “bad” (i.e., rights-infringing) outcome derived from a “good” (i.e., democratic) process does not mean the outcome wasn’t really all that bad, but rather that the process wasn’t really all that good.

The legitimacy of a government must derive equally from what it does and from how it does it. One must not be allowed to trump the other.

(Part Two here.)

Previously:
–From the Archives: On Gays and Democracy

Filed under: Gay Rights and Issues, Law, Libertarianism, Society, Religion, Culture Wars, Updates