The Negation of Democracy

by Sal on August 16, 2010

in Culture,Judicial Watch,Law,Politics

I came across a fascinating blog post this morning over at Patterico’s Pontifications entitled What Can Be Done About the Increasing Worthlessness of Your Vote? The main point of the article was that multiple factors are in play that are making the individual citizen’s vote increasingly worthless, turning a functioning Democratic Republic into more of an oligarchy (my term).  The article basically states that the tools used by politicians to keep their seats (Gerrymandering, Campaign Finance laws) along with the increasing population which dilutes our votes make the worth of a single vote less and less over time.  He then goes on to point out that even when our votes seem to count and a ballot initiative or piece of legislation is enacted, it faces a rather large and disproportionate probability of being overturned by an unelected activist judge.

While I disagree with some points in the post (specifically on the population dilution section), overall I think that the concepts it conveys are worth discussion and are somewhat troublesome.  He is right that the power of the incumbency is a major impediment to limiting government along the lines of the Constitution.  Term limits are a potential fix for that, but enacting term limits requires a Constitutional Amendment which is somewhat difficult.

Even more troubling, and a subject that I have been railing on for years, is the idea that an unelected judge can easily and quickly negate the will of the people by issuing an activist ruling on an issue that the people have voted for.  Take California’s Prop 8 (which was one of the subjects of our last podcast and a topic of discussion in our comments section).  In this ruling, the judge ruled that based on the equal protection clause of the Constitution, California’s prop 8 (which defined marriage as the union of a man and a woman) was unconstitutional.  This proposition was voted on by the majority of California voters, and overturned by one person on dubious Constitutional grounds.

If equal protection is as the judge in the Prop 8 case stated, then one would be free to marry a 16-year old, or marry one’s dog.  The key problem here is that the equal protection clause was used to expand the law, not to enforce it equally.  Equal protection would say that the state cannot stop any man from marrying any woman, as the law of marriage allows for the union of one man with one woman.  Thus, a gay man is free under the law to marry a woman (even though that gay man likely would not want to).  The judge in this case, however, expanded the law and said that now marriage must be expanded to allow for one man and one man, and then one woman and one woman.  Now, could equal protection now be used to expand it to polygamous marriages, or (adult) incestuous marriages, or underage marriages?  By the logic used by this particular judge, yes.  He refused to look at the case from a strict Constitutional standpoint, and instead looked at it from the point of view of what he thought was right.  That is not the role of a judge in our Constitutional system.

Let’s take another example.  Suppose a law was passed by the people that said that a person could only receive Social Security benefits if they worked and paid payroll taxes for at least 15 years.  Such a law would be completely Constitutional.  However, under this judge’s equal protection argument, a person could sue to expand the law by saying that even though they only worked in the system for 13 years, they were being denied equal protection.  Obviously, that would be absurd, but it would be the appropriate ruling if the Prop 8 equal protection logic was applied.   The key is that equal protection is meant to protect all individuals under existing law, not expand the law to accommodate all possible situations.

This is not to say that gay marriage itself is unconstitutional.  Rather, it is to say that this type of question needs to be decided by the people of the various states, not by an unelected judge.  I may be personally against gay marriage, and I will vote against it when proposed.  But if my fellow citizens decide otherwise through the Democratic process, then that decision should stand, unless it is overturned by a future election.  I wouldn’t want a judge to declare a ballot initiative that legalized gay marriage as unconstitutional, any more than I wanted a judge to overturn prop 8.  Judges simply don’t have a role here, unless a law is a clear violation of the Constitution.

The problem of unelected judges negating the will of the people is in fact the biggest problem identified in Patterico’s post.  While Gerrymandering, campaign finance laws, and increasing population do dilute an individual vote, they still allow for a democratic process.  Judicial negation does not, and only a reform of the judicial system can fix this.

Conservatives should make more of an issue of judicial reform, and push elected representatives to tackle this issue.  Congress needs to reign in the authority on what types of cases fall under judicial purview (a role that Congress does indeed have, according to the Constitution).  Judges who consistently violate the Constitution should be impeached.  New laws should be passed for the lower courts to put in a review process for judges, so they are not lifetime appointments.  All of these can be accomplished with legislation.  Finally, a Constitutional amendment should be adapted to term limit judges on the Supreme Court, so they do not serve lifetime appointments.  These reforms may not be all-encompassing, but some type  of reform is desperately needed if we are to prevent our democracy from becoming an oligarchy of the judicial philosopher-kings.

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