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Part of the American Democratic Process

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In response to Eugene Volokh, I should say that I’m perhaps making a slightly different argument than the one he’s addressing. My point about the vote in the legislature, as well as the support for same-sex marriage signaled by the governor urging the courts to resolve the issue and opposing a referendum to overturn it, is that claims of judicial usurpation of the prerogatives of the political branches are not in any way a useful description of this case, as a majority of legislators and the governor almost certainly agree with the court’s ruling. As is often the case, the California Supreme Court’s decision does not involve a zero-sum struggle for power, but rather is a case where the courts are resolving an issue because it cross-cuts existing party coalitions. This, in itself, doesn’t mean that the court’s decision was right; it’s possible to disagree on the merits. In many cases, one can also argue that the courts should respond to evasion by the other branches by throwing the ball back, but in this case it’s complicated by California’s silly system allowing its constitution to be amended (and hence judicial decisions overridden) by a simple majority of the popular vote.

I am, however, somewhat puzzled by his implication of disagreement with the proposition that “California Supreme Court’s same-sex marriage decision actually consistent with the democratic process.” In the American system, for better or worse, it’s part of the democratic process for the judiciary to scrutinize the actions of the other branches as well as (in California’s case) popular initiatives and pass judgment about their constitutionality. Strong-from federal review is a well-established part of this process, making California’s effectively very weak-form review certainly consistent with it (as Volokh somewhat concedes here.) I can imagine, in the abstract, an argument that the courts should always defer to other branches or the people unless the text of the constitution is clear. But, in practice, virtually nobody in the American system believes this or acts like this in practice, so these claims generally amount to arguments that progressives should unilaterally disarm. I don’t know if this is true of Volokh specifically, but certainly most of the critics of the California decision have no objection to cases where the courts use ambiguous constitutional materials to override electorally accountable officials to reach more congenial policy results (cf. Parents Involved, Garrett, Morrison) and are also strongly critical of the court in some case where it does defer in the face of ambiguity (cf. Kelo, Raich, Grutter.)

The California court could, I suppose, be criticized for usurping the democratic process if its reading of the state constitution were simply unreasonable, but that’s not the case. The majority’s reading is not commanded by the constitution, but it’s certainly defensible. And if we’re going to have judicial review, protecting unpopular minorities from being arbitrarily excluded from fundamental privileges strikes me as being at the type of case where judicial intervention is most defensible. But even if one disagrees, I fail to see how the court’s holding is in any way inconsistent with democracy as it is actually practiced in this country.

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  • Joe

    “And if we’re going to have judicial review, protecting unpopular minorities from being arbitrarily excluded from fundamental privileges strikes me as being at the type of case where judicial intervention is most defensible.”
    As, of course, it struck Justice Stone, as he wrote in footnote 4 to Carolene Products v. U.S.:
    “…: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.”

  • One should also note, as so many of the anti-marriage bigots fail to do (as well as many of the neutral to pro-marriage commenters who have internalized the “unelected judges” wingnut talking point), that California (like many western states) ELECTS ITS JUDGES.
    So EVERY element of this outcome has been subject to the democratic process, from the original anti-marriage proposition to the 2 pro-marriage laws passing the legislature but vetoed by the governor. The last chance for the bigots to stop gay people from marrying is coming up in November, when they can try, through CA’s ridiculous initiative process, to amend the CA constitution to take marriage away from gay people.

  • P J Evans

    Adding to paperwight:
    CA supreme court judges are confirmed at the first gubernatorial election after appointment, and every twelve years after that.
    The LA Times poll on whether the court ruled correctly was, yesterday morning, running 75 percent yes. (Unfortunately, it’s set up so you only see the results if you vote.)

  • Look, what part of “its undemocratic because I don’t like it” don’t you guys get? Democracy = the rule of the majority when majority = me to conservatives. When majority = lots of other people then it’s not democratic where democratic means desirable. Conservatives are, by nature, aristocrats and monarchists. They put up with democracy because in a democracy that has presumptive moral authority. But secretely they would happilly do away with all those pesky rights, rules, and systems through which we actually divine and implement the will of the majority.
    aimai

  • At another message board I was arguing with some wingnut who claimed to be a lawyer, who was spouting the ‘overruling the will of the people’ talking points. Eventually he got to the point where he described Marbury v. Madison as ‘controversial’ (as in controversial today); that was all I needed to know.

  • Samizdat!
    action when the truth becomes contraband

  • kid bitzer

    here’s hamilton building judicial review into the structure of the constitution, back in 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. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought of course to be preferred; or in other words, the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.
    Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature declared in its statutes, stands in opposition to that of the people declared in the constitution, the judges ought to be governed by the latter, rather than by the former.”
    notice that hamilton here says not only that the courts have the power of judicial review but that
    1) they alone have it (“proper and peculiar”), the legislature and executive do not; and
    2) the overturning of a law for unconstitutionality is not in any way an affront to the will of the people, but rather a supreme expression of the will of the people. the people themselves spoke first and most fundamentally through the constitution; the laws come later, derivatively, and through mere agents of the people.
    like it or not, that is the position of the authors of the federalist papers and of the constitution. It doesn’t come from Marbury vs. Madison; it comes from the authors of the constitution, and from the entire common-law tradition of judicial functioning.

  • elm

    Not to step on DJW’s frequently missing toes, but there is a large strain of democratic theory literature that suggests that judicial review is undemocratic. Dahl is probably the most prominent writer here. The arguments typically revolve around a particular definition of democracy that enshrines the majority will above all. Judicial review, being meant to restrain the majority will, is, therefore, undemocratic.
    This is democratic theory, though. Scott’s correct that, in practice, American democracy has always been about restraining the majority will and, therefore, judicial review is not undemocratic. (Unless one wants to make the argument that American democracy is not democratic.)
    But if one defines democracy as something other than “majority rule,” as we do in the U.S., then judicial review becomes less problematic from even a theoretical perspective. The justices are appointed by elected representatives (and in California, apparently, confirmed by the electorate) and they can be overruled by electoral processes (amending the constitution, though difficult can be done.)
    Thus, I agree with Scott that most of the complaints about judicial review being anti-democratic are hypocritical and/or absurd, but one could make a principled, theoretical argument along those lines.

  • @ elm: I’m curious. What precisely does that strain of theory say about majority oppression of minorities, or even majority-of-voters, minority-of-population oppression of the majority of the population which opporession includes disenfranchisement?
    There would seem to be no corrective for those failures in the “will of the majority” model.

  • elm

    paperwight:
    Since I’m not actually a democratic theorist myself, it’s been a while since I read this stuff, so I’m a little fuzzy on the details. However, on your latter question, any disenfranchisement would quite clearly violate democratic norms. Though how you correct this in practice is anyone’s guess. But democratic theory and democratic transition theory very frequently have little to do with each other.
    As to the former, I’d guess various theorists in this strand have more nuanced and better answers, but my memory tells me that majority oppression of minorities is simply acknowledged as a possible downside of democracy.

  • gmack

    elm and paperwight:
    I’ll put on my democratic theory hat for a moment to observe that disenfranchisement does not necessarily violate democratic norms, though it does violate liberal norms.
    Disenfranchisement does not violate norms of democracy because democracy requires that the people be identified. If the people are going to rule, we need to know who counts as a member of the “people.” This is probably always the case: even liberal democracies distinguish between citizen and foreigner, for instance, or citizen and (colonial) subject, etc.
    All of this, however, contradicts liberal principles of equality and universality–i.e., the idea that each person should have equal rights under the law. Indeed, at the limit, liberalism tends to become fully cosmopolitan, in some sense or other.
    Finally, in democratic theory it is not terribly common to identify democracy with “majority rule.” Majority vote is simply a practical means for declaring the decisions of the people, not an end in itself.

  • djw

    in democratic theory it is not terribly common to identify democracy with “majority rule.”
    To follow up briefly (someday I’ll post on this topic, really!), this is an important point. There’s two presumptions at work here that don’t hold up to serious historical or analytic scrutiny. First, the nontion that democracy simply is majority rule, and second, that legislative (and possibly executive) decision-making is essentially the same thing as majority rule, and is as such automatically democratic.
    elm’s right that plenty of serious democratic theorists take the position that judicial review is undemocratic, but most of them have a bit more to their arguments than simply observing that it’s undemocratic simply because it’s counter or non-majoritarian. Waldron’s argument–and he’s one of the most important democratic theorists to reject judicial review– is in this very general ballpark, but the details are far more sophisticated and compelling than the formulation elm offers above.

  • elm

    Hey, I said this was out of my area of expertise, so some allowances need to be made for my muddled-headedness.
    However, though this will have to wait until I get to my office tomorrow where most of my books are located, I’m pretty sure Robert Dahl in “Democracy and its Critics” makes an argument very similar to the one I put up above. He claims, I think, that judicial review enshrines the power of the elite over that of the people (and I’ll admit that I conflated ‘people’ and ‘majority’ in my posts above, probably incorrectly.)
    I will say, though, that this “will of the majority” nonsense I was spouting above is something akin to the British view of democracy with the power of parliament being unconstrained and all that.
    (I certainly didn’t expect to get into a debate about democratic theory when I woke up this morning. Damn you, LGM!)

  • mpowell

    The sad fact of the matter is that Volokh is not all that much better than his fellow travellers on these kinds of issues. I think it just comes with the territory. If you spend enough time in the echo chamber it corrupts your thinking process to the point where someone like Volokh, capable of reasonable work, will also offer these hack-worthy arguments. The problem is with who he respects. If people you respect frequently make these arguments, probably you will too, eventually.

  • mpowell

    Let me respond to the Dahl stuff briefly. Claiming that the legislature best represents the majority view is already questionable at best. There are inherent biases built into any law-making body that will corrupt the degree to which their decisions reflect popular will. My view is that majoritarianism is represented by a large gray area of possible arrangments which do arguably similar jobs of approaching the ideal. In the case of California, since the court can be overriden by a simple majority, it is difficult for any court decision to constitute an ‘undemocratic’ process.

  • anybody here listen to doug kmiec tie himself in knots discussing this on NPR today? It was a scream. I’m trying to get a transcript.
    aimai

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