Obligatory Post on CA Marriage Equality: In Defense of Judicial Activism

Actually, obligatory suggests that I don't actually want to write about this, which is false. There is no doubt that the California decision is a landmark, and what I read of the 162 page set of opinions was quite well-reasoned. For the most part, neither dissent resorts to demagoguery (which is pretty typical when you have relatively independent judges doing the decision-writing), with the most vehement dissent taking great care to complement the majority on their sensitive and considered approach to the issue. The second, less vehement, dissent raises some important issues though that I want to address more.

But first - after all the claims of the Religious Right over the last few years that same-sex marriage would destroy marriage as an institution, I'll admit my commute home from work this evening was filled with fear. Would my wife and child still be home, waiting for me? Would my wife still be wearing her wedding ring? Would my wedding ring begin to fade away, as if it were a photograph in the hands of Marty McFly? By the time I was home, I was in a cold sweat. When I walked in the door, my worst fears appeared to be coming true - my wife wasn't wearing her wedding ring! I immediately broke down into tears, begging Chri....err, the Ghost of Jerry Falwell for forgiveness. My confused wife then informed me that she had just taken her ring off to take a quick shower. In other words: California now allows same sex marriage, but my marriage didn't fall apart! Shocking, I know. But also true.

Anyways, on to the issue raised by the dissent in the CA marriage cases. This specific issue was the argument that it is not the role of the courts to overturn as unconstitutional the will of the people. It is essentially an argument against so-called judicial activism.

But judicial activism is good, perhaps even close to an unqualified good, at least as far as it refers to a willingness of the courts to overturn public policy and laws. "But we live in a democracy - what can possibly be more undemocratic than a couple of old fogies in black robes overturning the popularly expressed will of the People?" This complaint is the quintessential argument against so-called "judicial activism"; it also demonstrates a complete lack of understanding of the proper function of the courts.

As many libertarians are quick to point out democracy is a means, not an end in itself - democracy without freedom is meaningless; freedom without democracy is not (think Monaco here, for example). Moreover, we do not live in a pure democracy, but in a constitutional republic; a republic which, according to Madison's Federalist #10 (you knew this was coming), is set up to prevent any one group from gaining dominance over any other group. The constitutional republic that is the United States, and which forms the template for many, even most, state constitutions (including, I think, California's, despite its bad habit of direct democracy), is specifically intended to prevent the tyranny of the majority. In other words, our system of government is supposed to distrust mob rule every bit as much as it distrusts the rule of a king. Indeed, the authors of the Constitution viewed the legislature as the most dangerous branch of government precisely because it was susceptible to the tyranny of the majority.

So, how to defend against this most dangerous branch of government that poses the greatest threat of imposing the tyranny of the majority? The answer, of course, is the judiciary. Indeed, in many ways the very purpose of having an independent judiciary (such as exists in California and on the federal level) is to deter the tyranny of the majority as expressed through the legislature (as well as the tyranny of the Presidency). And the only tool that the courts have at their disposal to accomplish this critical end is to overturn legislation.

In other words: far from being anathema to Constitutional principles, judicial activism is itself a critical Constitutional principle. An independent judiciary does not exist solely to "interpret" the law; it actually exists primarily as a means of defending the minority against the tyranny of the majority. As such, gays seeking to overturn bans on gay marriage through the courts rather than or in addition to the legislature are not seeking to "subvert the will of the people," but are instead following the precise path that the Constitution intends them to take.

Those who complain that judicial activism somehow subverts the Constitution would therefore do well to re-examine their Federalist Papers. Especially Federalist #78 (and it pains me that this is Hamilton essay rather than a Madison essay), in which Hamilton writes:

"[T]hough individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter....The complete independence of the courts of justice is peculiarly essential in a limited constitution. By a limited constitution I understand one which contains certain specified exceptions to the legislative authority: such for instance as it shall pass no bills to attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of the courts of justice; whose duty it must be to declare all acts contrary to the manifest tenor of the constitution void. Without this, all the reservations of particular rights and privileges* would amount to nothing."

And if you still aren't convinced, how about this, also from Federalist #78:

"The interpretation of the laws is the proper and peculiar province of the courts. A constitution is in fact, and must be, regarded by the judges as a fundamental law. It therefore belongs to them to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body."

And finally:
"It is not to be inferred . . . that the representatives of the people, whenever a momentary inclination happens to lay hold of a majority of their constituents incompatible with the provisions in the existing constitution, would on that account be justifiable in a violation of those provisions....But it is easy to see that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the constitution, where legislative invasions of it had been instigated by the major voice of the community."


*I note that at the time Hamilton wrote this, the Bill of Rights, including the 9th and 10th Amendments, did not exist as part of the proposed Constitution. However, he argued that the pre-Bill of Rights Constitution actually protected rights better than a Constitution with a Bill of Rights since a Bill of Rights would be construed to create exceptions to powers which the government did not have, thereby implying that the government actually did have those powers. So when Hamilton refers to "particular rights and privileges," he is talking about far more than just enumerated rights and privileges of the People.