Thursday, March 04, 2004
As wax before the fire
Does that mean we're headed for another Florida debacle? No, no, no. Krauthammer is a conservative, and in Conservativeland all threats to democracy come from activist judges.
Uh, I mean, from activist judges they disagree with.
What upsets Krauthammer is the possibility that the courts will make an end-run around the national consensus opposing gay marriage. He's afraid that we're looking at another Roe v. Wade.
As it happens, I agree with conservatives that Roe was badly decided, though I disagree with their diagnosis. It's clear to me that a right to privacy is implicit in the set of rights explicitly guaranteed to citizens. But the status of a fetus, the question of whether it has rights that compete with a woman's right to privacy, is not a question of Constitutional interpretation.*
Notice the stark contrast here to the gay marriage debate. In that debate the issues have to do with things like whether the exclusion of same-sex relationships from legal definitions of marriage violates equal protection rights, and whether each state is obligated to honor the marriage contracts of all other states. Those are clearly Constitutional questions.
Did the Supreme Court, in deciding Roe the way it did, short-circuit the democratic process? In answering this question, it might seem relevant that the majority of Americans, then as now, favored the legalization of abortion. George Will certainly seems to think so.
He's wrong. So is Krauthammer. And so are all of the conservatives who rail against the crimes that activist judges supposedly perpetrate against democracy.
The simple fact, the fact that undermines all of these ridiculous whinings, is that our courts are democratic institutions. Most states elect some judges directly, a few states even elect justices to the State Supreme Court. How anyone could suggest that appointments to the federal bench are somehow insulated from the political process is beyond me.
Because the courts are democratic institutions, their rulings are part of the operation of democracy as it is practiced in the United States. While they might sometimes short-circuit pure majoritarianism, that's not the same thing as short-circuiting democracy.
None of this means, of course, that the courts don't make mistakes or that the courts can't malfunction in ways that are anti-democratic. But democracy isn't threatened by occasional mistakes. And it's instructive that anti-democratic malfunctions typically have to do with corruption.
When the courts make decisions that the citizenry disagrees with, this is frequently because the citizenry is being inconsistent -- as now when the majority of Americans support equal rights for all but oppose marriage for same-sex couples. If the citizenry wants to remain inconsistent, there are democratic recourses available. Sometimes, though, the reasoning of the courts points the way to a clearer understanding of the core democratic values that court-bashers claim to uphold.
* - Not that it's entirely clear what it would mean if it were found that the fetus were a bearer of rights. Some philosophers, notably Judith Jarvis Thomson, have forcefully argued that a woman's right to control her body trumps any claim a fetus might make, even if those claims are grounded in a fetal right to life.