Who has ultimate authority: the president or the courts?

Posted on February 9, 2017. Filed under: Truth v. Myth, U.S. Constitution | Tags: , , , , , , |

A simple question, being asked by many Americans as the courts deliberate over the president’s travel ban, that alarms us to the core. This is basic three-branches-of-government data. We should all have learned this in grade school. But since civics education has been eliminated in our schools, most Americans seem to lack the most basic understanding of how our government works.

And that’s so dangerous. It allows people to believe the president when he says the courts are traitorous and should just do as he says “because it’s right”.

We’re rerunning our post on this issue in hopes of answering that simple and fatal question for America. We originally ran it nearly a decade ago, in the context of state supreme courts ruling on gay marriage. Every time you read “the legislature” below, sub in “the executive”, that is, the president, and it addresses the issue with Trump today. Sub in “tyranny of the president” for “tyranny of the majority”, and you are also on track.

 

We were listening to the news and heard someone being interviewed say that an issue in their state had been decided by the state Supreme Court, and therefore the issue “was solved by the courts, not by democracy”.

This idea that the judiciary, one of the three branches of our government as described by our Constitution, is somehow not part of our democratic system is a baffling one. We are forced to repost our original rebuttal of this idea, from 2008, here in the continuing effort to fight this misconception:

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 judicial branch exists to review laws, acts, and executive orders to ensure that they are constitutional. If those laws, acts, and executive orders are not constitutional the courts must overturn them. This allows the judiciary to preserve our democracy in a crucial way—stopping tyranny of the majority.

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, through their members of Congress, 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.

We 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.

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Gay marriage in Alaska v. tyranny of the majority

Posted on October 17, 2014. Filed under: Civil Rights, U.S. Constitution, What History is For | Tags: , , |

Round 10 for this post, which we run each time the issue of gay marriage is resolved by a state court in its favor. The first time was back on May 21, 2008, when California’s Supreme Court decided that banning gay marriage was unconstitutional. The original point was that whenever a court overturns a law, there are always those who squawk—incorrectly—that it has overstepped its authority. The judiciary in the U.S. is meant to overturn laws, even laws with great popular support, that are unconstitutional because they restrict peoples’ liberty for no good reason.

Overturning bans on gay marriage started out as an example of thwarting this “tyranny of the majority”, as de Tocqueville called it, but now that the majority of Americans support or do not care to ban gay marriage, this type of legislation is becoming a rebuke to tyranny of the minority. That’s heartening.

Here is the original post, resurfacing now as Alaska’s ban on gay marriage is revoked:

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.

We 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.

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.

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Gay Marriage defeats tyranny of the majority–again

Posted on June 25, 2014. Filed under: Uncategorized | Tags: , , , , |

We’re happy to announce appearance #9 of this post, which we run each time the issue of gay marriage is resolved by a state court in its favor. The first time was back on May 21, 2008, when California’s Supreme Court decided that banning gay marriage was unconstitutional. The original point was that whenever a court overturns a law, there are always those who squawk—incorrectly—that it has overstepped its authority. The judiciary in the U.S. is meant to overturn laws, even laws with great popular support, that are unconstitutional because they restrict peoples’ liberty for no good reason.

Overturning bans on gay marriage started out as an example of thwarting this “tyranny of the majority”, as de Tocqueville called it, but now that the majority of Americans support or do not care to ban gay marriage, this type of legislation is becoming a rebuke to tyranny of the minority. That’s heartening.

Here is the original post, resurfacing now as a district court overturns Utah’s ban on gay marriage:

 

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.

We 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.

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.

Read Full Post | Make a Comment ( None so far )

Gay marriage in New Jersey–continuing to overturn tyranny of the majority

Posted on October 22, 2013. Filed under: Civil Rights, Politics, U.S. Constitution, What History is For | Tags: , , , , |

We’re happy to announce appearance #8 of this post, which we run each time the issue of gay marriage is resolved by a state court in its favor. The first time was back on May 21, 2008, when California’s Supreme Court decided that banning gay marriage was unconstitutional. The original point was that whenever a court overturns a law, there are always those who squawk—incorrectly—that it has overstepped its authority. The judiciary in the U.S. is meant to overturn laws, even laws with great popular support, that are unconstitutional because they restrict peoples’ liberty for no good reason.

Overturning bans on gay marriage started out as an example of thwarting this “tyranny of the majority”, as de Tocqueville called it, but now that the majority of Americans support or do not care to ban gay marriage, this type of legislation is becoming a rebuke to tyranny of the minority. That’s heartening.

Here is the original post, resurfacing now as New Jersey Governor Christie drops his attempt to stop gay marriage and the first couples are wed in that state:

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.

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.

Read Full Post | Make a Comment ( None so far )

Gay marriage and the tyranny of the majority—no more?

Posted on March 25, 2013. Filed under: Civil Rights, Politics, U.S. Constitution | Tags: , , , , |

Yes, it’s the seventh appearance of this post, which we run each time the issue of gay marriage comes up in high court in the U.S. The first time was back on May 21, 2008, when California’s Supreme Court decided that banning gay marriage was unconstitutional. The original point was that whenever a court overturns a law, there are always those who squawk—incorrectly—that it has overstepped its authority. The judiciary in the U.S. is meant to overturn laws, even laws with great popular support, that are unconstitutional because they restrict peoples’ liberty for no good reason.

Overturning bans on gay marriage started out as an example of thwarting this “tyranny of the majority”, as de Tocqueville called it, but now that the majority of Americans support or do not care to ban gay marriage, this type of legislation is becoming a rebuke to tyranny of the minority. That’s heartening.

Here is the original post, resurfacing now as we circle back to California. The U.S. Supreme Court is hearing a challenge to that original California ruling that made banning gay marriage illegal in the state:

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.

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.

Read Full Post | Make a Comment ( None so far )

No gay marriage in North Carolina

Posted on May 9, 2012. Filed under: Civil Rights, Politics, Truth v. Myth, U.S. Constitution | Tags: , , |

Yes, I will continue to re-post this article each time the question of gay marriage comes up in the courts or the polls!

Yesterday a majority of North Carolinians voted to amend the state constitution to read that “marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this state.”  This vote is an example of tyranny, and will likely spawn the same arguments decisions made by voters or state legislatures or state courts in California, Iowa, Vermont, and Massachusetts have, so here is the basic Truth v. Myth post on the role of the judiciary in the United States and the danger of tyranny of the majority in a democracy, which was originally posted in 2009 after California’s Supreme Court decision on gay marriage, once again:

State Supreme Court decisions deeming the bans on gay marriage unconstitutional  continue to spawn the usual outraged claims that the judiciary has gone too far. “We’re not governed by the courts,” is the common complaint, as sputtered by one angry man on the radio.

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 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, black and white, who wanted to abolish it. The natural 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 an injustice which is fundamentally 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.

Read Full Post | Make a Comment ( None so far )

Gay marriage defeated in Maine

Posted on November 4, 2009. Filed under: Civil Rights | Tags: , , , , , |

The voter referendum held in Maine on November 3, 2009 on whether to revoke the law recently passed there allowing gay Americans to legally marry was marked by claims that the people—rather than the courts or the state legislature—should decide whether gay people should marry. After state judiciaries in Iowa and Vermont in April 2009 legalized marriage for gay people, the usual outraged claims that the judiciary had gone too far filled the air. “We’re not governed by the courts,” sputtered one angry man on the radio.

This basic misunderstanding of the U.S. government leads me to repost this article, originally written in 2008 when California’s courts ruled on marriage for gay people. It applies to Maine, Vermont, Iowa, California, and any other state whose court decides in favor of allowing gay people to marry:

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. In the case of Maine, someone claimed that “using the courts as a battering ram to push gay marriage will only turn people against it [gay marriage].” The same could be said—and was said—about desegregation of schools. Popular approval is not the sole measure of a law in a democracy; it simply can’t be.

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.

Read Full Post | Make a Comment ( None so far )

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