On the
Constitution and The Role of Judges
I’ve heard a common refrain being shouted in the public
square these days by people who disapprove of same gender marriage. The federal
courts keep ruling that state laws that limit marriage to mixed gender couples
are unconstitutional because they violate the equal protection of the law that
the United States Constitution affords to all American citizens. The common
refrain that is echoing among us is that these rulings are wrong because they
are made by unelected and unaccountable judges and they violate the will of the
people. The proponents of discrimination in marriage loudly proclaim that
judges who are appointed not elected have no business overturning the will of
the people. To lay bare the specious nature of these claims we need to resort
to what used to be high school civics to show just how untenable those claims
are.
The claims that the judicial decisions extending marriage
rights to all people are inappropriate because they are made by judges not by
legislatures and violate the will of the people radically misunderstand the
nature both of the judiciary and of any constitution, whether it be the federal
constitution or the constitution of a particular state. We begin our high
school civics course with what a constitution is. You’d think that would be
pretty obvious, but clearly it isn’t. A constitution is the basic law of any
jurisdiction. In our country the US Constitution is the basic law of our
federal system of government. In the US the Constitution
creates the basic structure of the government. The US Constitution, Article
III, provides for the establishment of federal courts and provides that the
judges of those courts are nominated by the President, confirmed by the Senate,
and serve for life not for a specified period of time. They are never subject
to election by the people.
A constitution also often specifies certain fundamental
rights of the citizens that the government cannot infringe. In the US
Constitution those rights are mostly spelled out in the first ten amendments to
the Constitution, amendments known as the Bill of Rights. Among the rights of
US citizens that the government may not legally infringe is the right to what
the Constitution calls “the equal protection of the law.” There is an enormous
body of jurisprudence dealing with the precise meaning of that term and how it
is applied in specific circumstances, but the basic sense of the provision is
that all US citizens must be equal before the law. The federal government may
not treat similarly situated citizens differently without either a reasonable
cause or compelling reasons depending on the circumstances of a particular
distinction between citizens. The Fourteenth Amendment of the US Constitution
applies the federal provision of the equal protection of the law to the state
governments as well.
In 1803, in the foundational case of Marbury v. Madison, the US Supreme Court established that the
federal courts have the power to enforce the constitutionally protected rights
of citizens against the government itself. That is, the federal courts have the
authority to compel any governmental body, agency, or agent to respect the
constitutionally guaranteed rights of the country’s citizens. Marbury v. Madison established a
foundational principle of the American system of government. Some governmental
agency, specifically the courts, must have the power to enforce the rights
specified in the Constitution if those rights are to have any meaning at all. Our
courts’ having that power is the indispensible foundation of our freedom as
Americans.
There is an historical example of a system in which that
was not the case that is instructive. The Soviet Union had a constitution.[1]
It contained some rather lofty language about rights that were guaranteed to
the citizens of the country. It guaranteed freedom of speech and of religion,
for example. The Soviet courts, however, did not have the power to enforce the
rights specified in the constitution in any court case. A citizen being
prosecuted or discriminated against for violating the strict limitations of the
freedom of religion found in Soviet law and practice, however, could not raise
the constitution’s guarantee of freedom of religion as a defense against the
charge. The USSR had nothing like Marbury
v. Madison. As a result the rights mentioned in the constitution were a dead
letter. The government and the Communist Party could tout them around the world
for propaganda purposes, but they actually provided no protection for Soviet
citizens because the courts could not enforce them. Only a handful of Americans
know about the Soviet constitution and the Soviet legal system, but in our
current context it is an illustrative example of how not to do constitutional
government.
Yet the opponents of same gender marriage continue to complain
about unelected judges violating the will of the people. Those complaints raise
two important and closely related issues, namely, how the rights specified in
the Constitution relate to the will of the people and why federal judges are
appointed for life rather than elected for a specified term.
I’ll take up the question of how constitutional
guarantees of rights relate to the will of the people first. The function of
constitutional guarantees of certain rights is precisely to prevent the
government from violating those rights when those rights aren’t popular with a
majority of the people.[2]
After all, what need do we have of constitutional guarantees of rights that most
of the people like? Those rights don’t need legal protection because a
democratic government isn’t likely to violate them. The issue of
constitutionally guaranteed rights arises precisely in the context of rights
that a majority of the people don’t like. The history of the civil rights
movement in this country is a prime example of this truth. The Jim Crow laws of
the southern states expressed the will of the people, or at least they
expressed the will of a substantial majority of the white people of those
states. A majority of the people of the Jim Crow states didn’t want Black
people to have equal rights to education, the ballot box, employment, or public
accommodations. Nonetheless the laws that
established American apartheid were not only sinfully unjust, they were
unconstitutional because they violated the equal protection clause of the US
Constitution. That a majority of the people in the affected states liked those
laws didn’t make them constitutional. It didn’t matter that the people
continually elected politicians who enacted those laws and vowed to maintain
and defend them. George Wallace may have had great popular support as he stood
in the doorway of the administration building of the University of Mississippi
and attempted to prohibit a qualified Black student from registering at the
school. What he did was still unconstitutional as the act of a government
official denying the equal protection of the law to a citizen of his state. A
majority of white Alabamans may have cheered in approval as Bull Connor and his
thugs with clubs, attack dogs, and fire hoses viciously assaulting groups of
citizens demanding nothing more than their rights as citizens. What he did was
still unconstitutional as the act of a government official violating the equal
rights of those citizens. When the federal courts and the US Justice Department
intervened against these discriminatory governmental actions people shouted
about the will of the people and states’ rights. They shouted about tradition.
They also shouted obscene racist garbage, but then many of the people shouting
about the will of the people and so-called traditional marriage today also
shout obscene anti-homosexual garbage. You’d think that the parallels between
the shouts of the anti-gay bigots today and the shouts of the racist bigots
fifty years ago would be enough to discredit those shouts and those who shout
them. Still, the shouts ring out. The unelected, unaccountable federal judges
are violating the will of the people! What an outrage! How dare they! Those
cries didn’t make Jim Crow constitutional, and they don’t make marriage
discrimination constitutional either. When judges enforce the Constitution
against the popular will the Constitution is functioning precisely as it is
supposed to.
Then there’s the matter of federal judges being unelected
and, as the complainers insist, unaccountable. The first thing to say is that
federal judges are not purely unaccountable. They can be impeached and removed
from office in the same way a President can, although that has rarely happened.
More importantly, federal judges are supposed to be precisely unaccountable to
the will of the popular majority. The US Constitution deliberately and
explicitly sets them up that way, and it is a very good thing that it does. The
rights of citizens do not depend on the will of the majority, and the tenure of
the judges who have the job of protecting those rights mustn’t depend on the
will of the majority either. Removing federal judges from direct accountability
to the people through election to office makes it possible for them to enforce
constitutional rights against popular dissatisfaction with their decisions.
That federal judges are appointed for life rather than elected for a specific
number of years is a crucial safeguard of all of our rights.
Emotions run very high around the issue of marriage
equality, so perhaps examples from other areas of constitutionally guaranteed
rights will help to illustrate the matter. Take freedom of speech, for example.
I have previously used Fred Phelps and Westboro Baptist Church as an example in
this regard in this blog. I find the words and actions of Phelps and his
followers to be hateful and deeply disturbing. Phelps was a bigot, and those
who follow him are bigots. He spewed vicious hatred against gay and lesbian
people and against this country for what he saw as its tolerance of them. I and
most Americans at some level wished that we could shut him up. Yet I have
argued before, and I argue again now, that Phelps’ vicious speech was protected
by the First Amendment to the US Constitution. Most people intensely disliked
Phelps and his hatred. Even people who oppose marriage equality I assume could
not stomach is bilious filth. Our dislike of Phelps and his words, however, did
not change the fact that his speech is protected from censorship by any
governmental entity by the US Constitution. His speech needed that protection
precisely because so many of us wanted him to shut up. Marriage equality needs
judicial protection precisely because so many people don’t want it to happen.
In neither case should a judge bend to public opinion. That federal judges are
appointed for life and not elected is an essential protection of the judge’s
freedom to do what is right even when people don’t like it.
So, have the many federal judges who have overturned
states’ restriction of marriage rights to mixed gender couples violated the
will of the people? Yes, probably. Does that make their decisions wrong? No,
absolutely not. Should the people have the power to vote them out of office
because the people don’t like their decisions? No, absolutely not. The framers
of the US Constitution were much wiser in this regard than are the outraged
citizens and their elected representatives who scream about unaccountable
judges violating the popular will. Yes, those judges, while not completely
unaccountable, are not subject to popular election. Yes, many of those judges
have violated the popular will in many states. For those truths we should be
saying “Thank God.” Let us be thankful that we have a political system that
lets those judges exercise independent judgment and enforce our rights against
those who would take them away.
[1] It
actually had several over the years, but the differences between them are not
significant for our purposes here.
[2] I
do not meant to suggest that marriage equality is unpopular with a majority of
Americans. Certainly at least in certain states that is not the case. My home
state of Washington approved marriage equality by legislative action followed
by a popular vote a couple of years ago. However, the cries I’m discussing here
come from states where marriage inequality has been written into the law by
popular vote, so the point remains valid.
