Thursday, March 28, 2013

The Danger of Supreme Wisdom

Today and yesterday, the front page of the New York Times was covered in excited speculation. There's no telling for sure, but in Tuesday's oral argument, the Supreme Court seemed to be unwilling to uphold Proposition 8 because the appellants who support it lack standing to appeal. And yesterday, in United States v. Windsor, the court seemed skeptical of the federal government's authority to distinguish between homosexual and heterosexual marriages. In short, the court gave a victory and a half this week to supporters of gay marriage.

I do not think this is good. Not because I'm against gay marriage: I support it firmly. Nor do I fully disagree with the Equal-Protection rationale that the court will likely use to strike down the Defense of Marriage Act. But I am afraid of our democracy's reliance on unelected judges to decide pressing social issues.

Gay marriage is one of the sharpest points of moral dispute facing the country. And its very importance gives our democracy the opportunity to do its best work: the citizens of each state can decide which moral commitments they're going to make, and elect accountable representatives to enact their will. There's no one in charge but us: if we decide to recognize gay marriages, we'll do it. If we don't, we won't.

It's thus a serious problem when we submit the problem to the Supreme Court, composed though it is of the nine wisest scholars in the land. When we do that, the moral question goes out of our hands, and even though we might like the public policy that results, we buy it at the price of our democratic autonomy. Advocacy groups, instead of pressing for good legislative policy, invest in convoluted legal campaigns to influence a panel of sages who are out of their control. And instead of deciding what they want for themselves and calling their legislators, citizens line up on First Street to hear the decree of the black-robed Pythoness.
This is not what democracy looks like.
Sometimes, of course, it is worth diluting pure democracy in the name of Constitutional liberty. The Constitution does impose necessary limits on democracy, because, as de Tocqueville observed, the tyranny of the majority can often be worse than that of a king. Segregation is only the most egregious example of that tyranny. But constitutional limits on democracy must be sparingly used, for if we are to remain a democracy, we must be able to decide our own destiny within broad limits. Only when our legislatures consistently and dangerously fail to protect Constitutional liberties should the court usurp their legislative authority. As Felix Frankfurter wrote, "The fact that [the narrow judicial authority to nullify legislation] may be an undemocratic aspect of our scheme of government does not call for its rejection or its disuse. But it is the best of reasons, as this Court has frequently recognized, for the greatest caution in its use."

Last November's elections gave nationwide victories to supporters of gay marriage. I was very happy: the American people took its moral fate into its own hands, and decided to abandon a centuries-old tradition of exclusion in favor of individual liberty. It was a demonstration that Americans are capable of advancing individual freedom without being forced to by Harvard-educated moral guardians. It was a vindication of our democratic experiment.

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