Sunday, April 19, 2009

Not Democratic?

The whole gay marriage issue has resurrected a perennial complaint on the right about judicial activism, now focused on how it is 'not democratic'.

Many people, most of them better writers than me, have addressed this, but I have seen none that mentions what is to me the key response.

Yes, it is undemocratic. It's supposed to be.

Some things are simply not to be decided by a vote. Democracy is the best government system humanity has found. That does not mean it is perfect. That is why we have a constitution, and more specifically a bill of rights. These are the things that are not negotiable.

Or to put it most simply, when the courts strike down a democratically enacted law to protect the rights of a minority, they are doing their job. No more, no less.

6 comments:

James Wolfer April 19, 2009 at 11:08 PM  

You totally hit the nail on the head here. I'm going to be posting on this soon. The GOP needs to get its act together regarding gay marriage if it wants to survive. Right now it is coming across as the "bigoted" party...

OpenMindedRepublican April 19, 2009 at 11:25 PM  

Might be some light beginning to glimmer at the end of the tunnel.
The governor of Utah of all places has come out infavor of civil unions. A practicing mormon no less. And far from being suicide, a month later his approval rating is through the roof.

I foresee that this will end with the government getting out of the marriage business entirely, and a generic 'civil union' tag being used for benefits and taxes.

(O)CT(O)PUS April 20, 2009 at 3:55 AM  

Sometimes phrases leave behind an unintended ambiguity, and it pays to be extra aware to avoid these constructions. Here are examples of what I mean:

"The shooting of the lions was deplorable."
Meaning 1: Hunters shot the lions and their act was deplorable.
Meaning 2: The lions shot the hunters and their act was deplorable.

"Ship sails tomorrow"
Meaning 1: A newspaper announcement that states when a cruise ship departs
Meaning 2: A telegram that states when a canvas manufacturer will ship the order.

Here is the phrase that strikes me as being ambiguous:
when the courts strike down a democratically enacted law to protect the rights of a minority ... According to this construction, Is it the courts or the law that is upholding rights?

OpenMindedRepublican April 20, 2009 at 4:27 AM  

Octo - It would be the courts.

TAO April 20, 2009 at 5:07 AM  

Its the law....

We are a law bound society and our courts intepret and enforce the law....

repsac3 April 21, 2009 at 10:37 AM  

I keep promising myself that I'm going to write a post on this, too...

It seems like many of those not in favor of gays/marriage don't respect the purpose and procedures of the judiciary branch of government. Much of it is unelected and not subject to review by the people (not easily, anyway) by design.

It is their job to read the wording of laws written long ago and occasionally stretch them onto situations that did not exist when the law(s) were written, whether for or against. (Even deciding that the wording doesn't apply to this new situation is making a judgement about it.)

Our government was at least in part founded on the idea of protecting the minority from the will (or the oppression) of the majority.

As you so correctly state, not everything can or should be decided by majority vote, and sometimes, it does take the unelected, undemocratic folks in black robes to move this country forward.
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