Category: Civil Rights

The Judiciary saves us from the tyranny of the majority

The California Supreme Court’s decision that banning gay marriage is unconstitutional has been met with the by-now common complaint that the Court overstepped its bounds, trampled the wishes of the voters, and got into the legislation business without a permit.

A review of the constitutionally described role of the judiciary is in order.

The famous commentator on American democracy, Alexis de Tocqueville, talked a great deal in his books Democracy in America about the tyranny of the majority. This is when majority rule–the basis of democracy–ends up perverting democracy by forcing injustice on the minority of the public.

For example, slavery was an example of the tyranny of the majority. Most Americans in the slave era were white and free. White and free people were the majority, and they used their majority power to keep slavery from being abolished by the minority of Americans who wanted to abolish it. The rights of black Americans were trampled by the tyranny of the majority.

Before Brown v. Board of Education in 1954, the majority of Americans were fine with segregated schools. They used their majority power to oppress the minority of Americans who were black, or who were white and wanted desegregation.

In each example, the majority is imposing and enforcing injustice which is incompatible with democracy. They are tyrannizing rather than governing.

The judiciary was created to break this grip of majority tyranny. The legislature–Congress–cannot usually break majority tyranny because it is made up of people popularly elected by the majority. But the appointed judiciary can break majority tyranny because its sole job is not to reflect the wishes of the people but to interpret the Constitution.

If the judiciary finds that a law made by the legislature perverts democracy and imposes the tyranny of the majority, it can and must strike that law down. This is what happened in California. The court found that although the majority of Californians (as evidenced by a previous referendum) had voted to ban gay marriage, that majority was enforcing and imposing injustice on the minority. So the court found the ban unconstitutional.

This is not beyond the scope of the judiciary, it’s exactly what it is meant to do.

I heard a commentator yesterday saying the California court should have left the issue to “the prerogative of the voters”. But if the voters’ prerogative is to oppress someone else, then the court does not simply step aside and let this happen.

The same people who rage against the partial and biased justices who lifted this ban are generally the same people who would celebrate justices who imposed a ban on abortion. People who cry out for impartiality are generally only applying it to cases they oppose. See Dispatches from the Culture Wars for an excellent post demonstrating this.

So that’s what the judiciary does: it prevents the tyranny of the majority from enforcing injustice in a democracy. Like it or not, the “will of the people” is not always sacred, and sometimes must be opposed in the name of equality.

Should God–and the rest of us–damn America?

I heard once again today the section of pastor Jeremiah Wright’s recent sermon in which he claims that God should damn America for its racism. This has caused uproarious debate.

This is not really an argument about racism or race. It’s about Truth v. Myth. And I’m afraid Wright is pushing Myth.

The attitude that says America should be damned–no matter how metaphorically–for its racism is the same attitude that says America is, has always been, and shall always be, a lie. It has never been a land of freedom, or truth, and is a shameful sham that weighs us down. America, from its Declaration of Independence to it 2008 presidential campaign, is a worthless heap of lies.

This is what really makes those who do feel angry about Wright’s comments feel that anger. They see that he is dismissing America as a lie that ought to burn on the scrap heap. And those listeners, as Americans, as part of America, take offense.

Contrast Wright’s approach to that of Martin Luther King. King didn’t strike a blow against America, he struck a blow for America and what it stands for. He recalled for all Americans, black and white, that their country is dedicated to the proposition that all men are created equal. He reminded us that segregation and racism are un-American. He would not be fooled into believing what racists said, which is that racism is consistent with American values, its founding principles. He would not cynically accept that there was no point working with whites to recover those principles because those principles were bankrupt.

King reminded us of who we are, of who we are supposed to be, and he forced us to live up to those values. He didn’t let anyone off the hook for America’s failure to live up to its principles, and for that we owe him so much. He was fired up for America, and led millions of others to feel the same way.

The genius of this (besides the fact that it was true) was that anyone who opposed him came off looking anti-American. They were revealed as racist drags on the democratic system. They looked like the moral dinosaurs that they were. They were forced to attack women and children to make their point, and Americans revolted at that.

So we should not damn America. We should rescue it. We can do that by recalling our history and our founding principles and doing our utmost to yank the country back into line with those principles whenever we can. That way, anyone who opposes us looks like the anti-American obstacle that they are.