I’ve been writing a seminar paper on the democracy deficit in international law and arguing that the system can be legitimate without democracy because constitutionalism (and some other things) fill the void. I was thinking about the whole California issue last night and it occurred to me that it raises similar questions. Of course, we’re all raised to think that democracy is great and wonderful and special, but it does have its problems. One of those is that internationally, we tend to not accept democracy if it doesn’t get us the “right” leader. We don’t have that problem so much at home, but democracy doesn’t always work so well nonetheless. There’s a tension between “tyranny of the majority” and “tyranny of the minority.” Those of us who are gay or lesbian don’t feel so hot about the majority ruling on our rights, after all. We want to say that no matter what the majority of Californians think, it’s just not right. On the other hand, Californians in favor of the Proposition don’t like the idea of a minority of gay people, and the justices in kahootz with them, deciding what marriage is. As biased as I am, there are points on both sides.
A constitution is supposed to be a document that reflects a society’s fundamental principles. Of course, at the start, it was a democratic instrument, and it can be altered, but we have to sacrifice a teeny bit of the democratic element to protect vulnerable minorities and ensure that certain basic principles aren’t just vetoed. That’s why constitutions are so difficult to amend. There’s an argument coming out now, which I think is a good one, that Prop 8 is invalid because California has two different types of amendment processes and the ballot initiative one isn’t supposed to be used for amendments that fundamentally alter the existing nature of the constitution. I think this is a good idea, because the whole point of a constitution is to protect against temporary political surges. The amendment process is supposed to say “hey, are you sure you want to do this?” A simple majority vote doesn’t quite achieve that.
I understand the whole “judges legislating” argument, but let’s remember one of the key purposes of judges – to uphold individual freedoms. The thing about equality is, it benefits everyone. And this may bug some of us, some of the time. But on the whole, it’s a good principle. It protects straight people, too. Despite what some may think, it wouldn’t be constitutional for schools, for example, to promote gay marriage over straight marriage, or homosexuality over heterosexuality.
Sometimes I’m uncomfortable with my anti-democratic ideas, because a constitution could of course enshrine principles that are oppressive. But I don’t think this is an issue when it comes to equal protection. I think equal protection on the whole, works well, and the discrimination Californians are trying to enshrine in their constitution is based on bare animus towards a politically unpopular group – something the Supreme Court has rejected, and I think most Americans would reject (even Californians, if you put it in general terms). The problem is the cultural moment, and we’ve had many cultural moments in our history like this one, which we’ve eventually gotten past. As one blogger said recently, in 20 years we’re going to be embarrassed about this.