How activist courts safeguard democracy

Let me begin with a quote on same sex marriage:

For anyone to say that this is an issue for people who are gay and that this isn’t about civil rights is sadly mistaken. If you really believe in freedom and limited government, to be intellectually consistent and honest you have to oppose efforts of the majority to impose their will on people.

Ward Connerly, emphasis added; h/t Andrew Sullivan

Let me add that if you “really believe in freedom and limited government,” courts have a crucial role to play in preserving those values.

Courts are able to push back when governments overstep their limits. That’s what we mean when we speak of the “rule of law”, which is one of democracy’s fundamental principles. The rule of law means that Presidents and Prime Ministers can’t do whatever they please; they must operate within the Constitution and other legal bounds.

When politicians place a toe over the line, who enforces those limits? The courts do, if they’re functioning effectively. (Sometimes they’re asleep at the switch.)

This has important implications for how we define the word “democracy”. “Democracy” makes us think, first, of voters electing a government. And so it should. But “democracy” means more than that. It also encompasses important principles like the rule of law; and important values like freedom, including freedom from state control.

This brings me to an interesting exchange between nebcanuck and me on one of his recent posts. He commented that abortion was “legalized through a series of court processes rather than through any democratic political process.”

That accurately describes the history, both here in Canada and (earlier) in the USA. Nonetheless, I responded with the following point:

Some decisions should not be arrived at by majority vote because the majority can carelessly trample on the interests of minorities. The decision about same sex marriage is a case in point. That isn’t an issue that should be put to a vote, any more than you would tolerate a vote that would outlaw interracial marriages.

Nebcanuck replied:

When you argue that the majority would trample the rights of the minority, and thus the minority should be protected, you’re arguing against “true” or “pure” democracy.

If, by “democracy”, we mean making decisions by means of majority vote — OK, nebcanuck is right. And presumably that’s why nebcanuck qualifies his statement by referring to “true” or “pure” democracy.

But I think “democracy” means something more than that. As I said above, “democracy” also implies freedom of the individual from state control.

Abortion and same sex marriage are both problematic examples of my point. Abortion, for the obvious reason that there is another life at stake, which arguably justifies state intervention. Same sex marriage is also a problematic example, though the reasons are more complex.

For a clearer example, consider the treatment of U.S. detainees at Guantanamo Bay and similar sites. The detainee — perhaps an American citizen — is not formally charged with an offence. He is not permitted access to a lawyer or a judge. The detention is indefinite — he will be held until the state sees fit to release him, if ever. There are rumours that the detainee has been tortured, or at least subjected to harsh treatment.

Here we have an individual who has been deprived of his freedom; the state’s power over him is absolute.

The electorate has a role in safeguarding the detainee’s freedom. Voters can organize protests and seek to generate political pressure on the detainee’s behalf. If that should fail, they can vote the government out of office in the next election.

But what if the electorate shrugs and says, “Terrorists deserve to be tortured”? (Ignoring the fact that the detainee has not been convicted of anything — he is held because the state says it suspects him of something.) In such cases, it is not merely legitimate for courts to push back against the state; the courts are acting to preserve democracy when they intervene.

The Supreme Court in 2004 issued three decisions related to the detention of “enemy combatants,” including two that deal with U.S. citizens in military custody on American soil. … The decisions affirm the President’s powers to detain “enemy combatants,” including those who are U.S. citizens, as part of the necessary force authorized by Congress after the terrorist attacks of September 11, 2001. However the Court appears to have limited the scope of individuals who may be treated as enemy combatants pursuant to that authority, and clarified that such detainees have some due process rights under the U.S. Constitution.


The point is this:  much-derided “activist” courts are actually an important bulwark of democracy.

Does that perspective hold true with respect to the relatively problematic examples of abortion and same sex marriage? Maybe.


2 Comments (+add yours?)

  1. Bridgett
    Jul 04, 2008 @ 11:39:30

    We aren’t a true or pure democracy already–although I think some small towns in Vermont are run that way–we are a representative democracy and count on the dolts we vote for to vote the way we want them to. Or at least to try to match us more often than the guy we didn’t vote for.

    It is a civil rights issue. It should not be brought to a popular vote of dense hot-button issue voters who will come out in droves to punish those people they fear and do not understand, without taking any sort of logic or fairness into account. And then they will also vote, uneducated, for the candidate who spouts the drivel that is most like what they think they hold dear.


  2. Stephen
    Jul 06, 2008 @ 15:49:57

    A few years ago, the Government of British Columbia held a referendum asking, among other questions, whether the tax exempt status of Indians should be phased out. (Under the Indian Act, individuals and businesses are tax exempt insofar as their property or business activities are located on reserve lands.)

    We can all guess which way voters will vote. But it’s a good example of a question that shouldn’t be decided in this manner.

    I’m with you: I think the question of same sex marriage is similar — it shouldn’t be decided by popular vote.


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