Is it ever ok to put people’s rights to a democratic vote? Dahlia Lithwick and Sonja West are adamant that it is not, as they make clear in an article in Slate on the subject of same-sex marriage. But their argument is wrong, and indeed dangerous.
Ms Lithwick and Ms West argue that “marriage equality … is a constitutional and not a democratic issue.” So is equality generally – as they put it, “[e]quality is not a popularity contest,” – and so are other “essential liberties.” They conclude their article with a reference to slavery – the biggest rhetorical sledgehammer except for Hitler – claiming that “[j]ust as [the U.S.] couldn’t go on with a mix of free states and slave states, we cannot continue with this jumble of equal marriage states and discriminatory states. Recognizing a federal constitutional right is the only, and the best, method to put this issue to rest.”
Ms Lithwick and Ms West might mean that when democratically enacted laws have the effect of defining the scope of citizens’ constitutionally protected rights and liberties, it is legitimate for courts, exercising the power of judicial review of legislation, to overrule these definitions and to impose their own. That would be an argument about what Jeremy Waldron, in his article on “The Core of the Case against Judicial Review” calls “process-related reasons” for choosing a procedure for settling disputes about rights. Prof. Waldron believes that the democratic, legislative procedure is much the better one, because it respects the views of every citizen on these matters. Ms Lithwick and Ms West think otherwise because of their contemptuous view of democracy as a popularity contest.
But it is not what the argument they actually make. What Ms Lithwick and Ms West say is that issues are either democratic or constitutional – and this implies that rights and liberties are simply outside the purview of the democratic process. This suggests not just that courts are better than legislatures at dealing with disputes about rights, or that they should be called in as a last result to correct legislative failures or oversights, but that legislatures and voters have no business pronouncing on issues defined as constitutional at all.
Contrary to Ms Lithwick and Ms West’s assertion, this is a radical argument. It is also an absurd one. Legislatures and voters engage with arguments about rights all the time – and they don’t always do it badly. Legislatures made same-sex marriage legal in Canada and in some of the states where it is legal in the U.S., including New York. Legislatures decriminalized homosexuality in Canada, the U.K., and much of the U.S. (though courts did end up sweeping the remaining prohibitions there). They abolished the death penalty in Canada, all of Europe, and those U.S. states where it no longer exists. Yet if one accepts that voting is not a legitimate procedure for settling disputes about right, as Ms Lithwick and Ms West contend, then one is committed to saying that all these votes were illegitimate – legislatures had no business addressing these issues at all. And one cannot say that legislation that advances rights is legitimate whereas that which restricts them is not; process-based arguments against a decision-making procedure remain whether or not the outcome is good. If flipping a coin to decide whether same-sex marriage ought to be legal is a bad idea, it remains a bad idea even if the result is one we agree with. Winning a popularity contest has the same moral significance as losing one – that is, none.
And as for the slavery argument, it is deeply ironic and ought to be embarrassing to Ms Lithwick and Ms West. When it confronted the issue of slavery, the Supreme Court of the United States not only upheld this evil, but extended it, holding that a law – enacted by a legislature, the U.S. Congress – prohibiting slavery in the U.S. territories was unconstitutional. This decision, Dred Scott v. Sandford, ought to be a reminder to those who defend judicial review that courts are not immune from doing evil and letting wrong prevail over right.
Unlike prof. Waldron, I think that judicial review has a legitimate place in resolving questions about rights in democratic polities. But so do legislatures – and their engagement with these questions is something to be celebrated, not denigrated. I do hope that same-sex marriage becomes legal everywhere (unless, that is, governments at last get out of the marriage business altogether, which would be even better). And if courts need to step in to make this happen, so be it. But the more involved legislatures are in this progress, the better it will be.