Thursday, May 22, 2008

Constitutional guarantees trump democratic majorities

In an article about gay marriage that refutes a new Republic article by Ben Wittes, Glenn Greenwald reminds me that I find smart people really, really hot:

That a law invalidated by a court is supported by a large majority is not an argument supporting the conclusion that the court's decision was wrong. Central to our system of government is the premise that there are laws which even the largest majorities are prohibited from enacting because such laws violate the constitutional rights of minorities. Thus, the percentage of people who support the law in question, and how lengthy and painstaking the process was that led to the law's enactment, is totally irrelevant in assessing the propriety of a court decision striking down that law on constitutional grounds. More...

Contrary to Wittes' extremely confused argument, a court striking down a law supported by large majorities is not antithetical to our system of government. Such a judicial act is central to our system of government. That's because, strictly speaking, the U.S. is not a "democracy" as much as it a "constitutional republic," precisely because constitutional guarantees trump democratic majorities. This is all just seventh-grade civics, something that the Brookings scholar and those condemning the California court's decision on similar grounds seem to have forgotten.

(Emphasis in the original.)

The problem, of course, is that we don't really teach "seventh grade civics" anymore. I kind of wonder if that's a coincidence. I kind of wonder if destroying our educational system (most recently with No Child Left Behind) is, in fact, part of a Republican strategy to take over America by making Americans too ignorant to know the difference.

But I digress.

Here's the thing. Minorities have rights. Even unpopular minorities. Even Jews and gays and Witches and blacks and Mormons. Even, y'know, Puritans, who came here because (wait for it) MINORITIES HAVE RIGHTS. And this, this is AGONY for conservatives. Unless, of course, they're in the minority.

You see, the entire argument is disingenuous. Conservatives wish to argue that "judicial activism" is Bad Bad Baddy Bad when it does terrible things like prevent discrimination against gays, but when judges, I dunno, enforce discrimination against gays they aren't in any kind of agony about judges overruling legislative action.

But Greenwald says it better. And smarter. And with restraint. Which is what gets me hot.

(Cross-posts get me hot.)