The suit to overturn Proposition 8 reveals the true goal of liberalism—the overthrow of democracy

(Note: See, further down in this entry, the exchanges between VFR readers and Kermit Roosevelt.)

I have said many times that the logic of modern liberalism leads to the ultimate elimination of the principle on which our political system is founded: self-government, meaning government that is instituted among men, deriving its just powers from the consent of the governed, in order to secure their unalienable rights. Under such self-government, the sovereign power of the people (or the sovereign power of the people of the respective states) is in a dynamic tension with the rights of the individuals who make up the people. But this tension between the opposite and complementary principles of majority rule and individual rights is derided and dismissed by modern liberalism, which makes individual rights the highest and controlling principle of our system. Majority rule means that the individuals who make up the majority have more power than the individuals that make up the minority, and this violates equality. Since majority rule cannot assure the absolute equality of all human selves that modern liberalism demands, democratic constitutional self-government must give way to the rule of an unelected elite that defines, declares, and enforces everyone’s equal rights.

The anti-democratic logic of modern liberalism is spelled out with audacious clarity by law professor Kermit Roosevelt (the great great grandson of Theodore Roosevelt) in the November 14 Christian Science Monitor. The editors’ decision to publish this egregious article, which would give unaccountable judges the power to define out of existence the most basic institution of Christian, not mention human, society, raises the question: in what sense is the Monitor Christian?

I have bolded key passages in the article.

California’s same-sex marriage case affects all of us
It forces us to consider why we have rights.
By Kermit Roosevelt

November 14, 2008

Philadelphia—What now for California? In May, its Supreme Court announced a right to same-sex marriage. Gays and lesbians rushed to take advantage of the opportunity; by early November, 18,000 such marriages had been performed. But on Nov. 5, they stopped. By a 52-47 percent margin, California voters approved Proposition 8, an amendment to the state constitution prohibiting same-sex marriage.

Immediately, gay rights supporters filed lawsuits asking to overturn the ruling. Critics are calling Proposition 8 an illegal constitutional “revision,” fundamentally altering the guarantee of equality—not a more limited “amendment.”

This suit raises a serious question: When should a majority have the power to take away a constitutional right granted by a court?

It’s a question that forces us to think about why we have constitutional rights in the first place, and why they are enforced by judges. But it is not simply a theoretical puzzle. All of us enjoy constitutional rights, and most of us are at some point in a minority. All of us could be affected.

American constitutional practice has generally been to expand rights over time, both by amendment and by judicial decision. Amendments to the federal Constitution, for example, gave women and minorities the right to vote. Judicial decisions have expanded the constitutional guarantee of equality to protect more and more groups. Some of these decisions remain intensely controversial, but none have been overruled by a federal amendment.

Of course, amending the federal Constitution is difficult. It requires approval by “supermajorities”: two-thirds in the House and the Senate and three-quarters of state legislatures. Federal rights cannot be taken away by a simple majority vote.

Because of this requirement, judicial decisions enforcing the federal Constitution’s equality guarantee have followed a relatively consistent pattern. At one point in time, a particular practice—say, the racial segregation of public schools or the exclusion of women from the practice of law—is so widely accepted that it seems beyond challenge. Judges are not likely to strike the practice down, and if they did, the backlash might well be strong enough to create a constitutional amendment.

Some time later, the practice becomes controversial. It still enjoys majority support—otherwise it would likely be undone through ordinary lawmaking—but it no longer has the allegiance of a supermajority. It is at this time that judges tend to act in order to protect the freedoms of the minority, striking down the practice as unjustified discrimination. The decision may be intensely controversial. It may even be the target of majority disapproval. But because there is no longer a supermajority, the decision is safe.

As attitudes evolve, the practice comes to seem outrageous. Almost no one, nowadays, would argue for racial segregation of schools or a ban on female lawyers. At this point, the judicial decision is no longer controversial.

If a majority could overrule a judicial decision, the process would frequently be stopped by that majority vote. Judicial interventions against discrimination would just not succeed.

Regardless of where you stand on same-sex marriage, what’s troubling for US citizens in the California case is the idea that an equality guarantee could not be effectively enforced against the will of a majority. The point of such a guarantee is precisely to protect minorities from discrimination at the hands of a majority.

It would be somewhat surprising, then, if California allowed judicial decisions enforcing the state equality guarantee to be overruled by a simple majority vote. In fact, as the gay-rights supporters’ suit indicates, it is not clear that it does. Under the California constitution, “amendments” can be approved by a simple majority vote.

But “revisions,” which make substantial changes, require approval by a supermajority—two-thirds of both houses of the legislature—before being submitted to voters. Supporters framed the same-sex marriage ban as an amendment, when really it has the makings of a revision.

It makes sense to require supermajority support to overrule a judicial decision that grants rights to a minority. It shows that the judges were so out of step with society that they were probably wrong. But a simple majority does not show that, and the constitution would not afford meaningful protection if it could be overruled at the will of the majority.

As the opposition to same-sex marriage in California has shrunk, simple majorities should not be able to reverse decisions made in the name of equality.

This is not an argument that the California court was correct. The battle for public opinion goes on. But letting the court’s decision stand against the disapproval of a simple majority is not only sensible, it protects the minority rights of future generations.

Unpopular decisions are the price of constitutional rights.

Kermit Roosevelt teaches law at the University of Pennsylvania’s law school.

According to Roosevelt, the only real operative and legitimate principle in our system is the ever expanding reach of “equality,” which knocks down one form of “unjustified discrimination” after another. If a 4-3 majority of the California Supreme Court declares unconstitutional a statute passed by popular referendum that defined marriage in California as the marriage of a man and a woman, as happened last May, this represents a step forward in the inevitable march of the progress of non-discrimination. Therefore this judicial usurpation should rule over the entire people of California. The people—meaning a majority of them—should not have the power to amend their constitution to undo that usurpation, because, under modern liberalism, whatever is done in the name of individual “rights” has precedence over majority rule. No constitutional restraint, such as the rule that judges are only supposed to interpret the law, not enact it out of their will, can stand in the way of this march of equal rights. Whatever the judges declare to be a right, becomes a right.

And this is indeed the argument made in one of the suits that was filed this week with the California Supreme Court seeking the overturn of Proposition 8. The suit alleges that the invalidation of same-sex “marriage” represents such a fundamental change in the California Constitution (which, let us remind ourselves, never recognized such a thing as same-sex “marriage” until last May) that it is not a mere constitutional “amendment” that can be enacted by a majority of the people in referendum, but is instead a constitutional “revision” that requires the approval of two-thirds of each House of the California legislature. The two thirds requirement places control of the definition of marriage beyond the practical reach of the people and their representatives, and puts it back in the hands of the seven judges of the California Supreme Court, or even in the hands of the one judge who casts the deciding vote in a 4-3 decision.

Why does this represent something new? Prior to this point, it was always assumed that if the judicial usurpations got too outrageous, the people could rise up and defeat them by constitutional amendment. But under the logic of Kermit Roosevelt and of those who seek to throw out Proposition 8, the power of the people to form and amend their constitution, their very right to institute their own government in order to secure their God-ordained, unalienable rights, must give way to judge-invented rights and judge-ordained redefinitions of the most basic and ancient human institutions. The true goal of liberalism—which is nothing less than the end of self-government and, with it, the end of our historic civilization—has been made explicit.

- end of initial entry -

Clark Coleman writes:

A couple of questions for Kermit Roosevelt:

1) Why should a bare majority of judges (e.g. a 4-3 vote) be allowed to overturn a popular referendum? If the referendum is so obviously a violation of the fundamental rights of a minority, cannot judges (who do not face election or re-election by the people) be expected to see it clearly? Should they not be unanimous, since it is so obvious to all right-thinking people? Why not require a 6-1 or 7-0 vote?

2) Blacks in California voted more than 70 percent in favor of Proposition 8. Other groups watered down their supermajority margin to a mere majority margin. Will not overturning Proposition 8 take away the right of this oppressed minority to engage in self-government?

Of course I believe in neither argument above, but it seems that Mr. Roosevelt should.

* * *

November 24

John Hagan forwarded my article to University of Pennsylvania law professor Kermit Roosevelt with this note:

I though this was a devastating criticism of your position on Prop 8. I shudder to think what kind of nation this will be with people such as yourself in power. Here’s some diversity of opinion, if you can stand reading it:

Prof. Roosevelt replied to John Hagan:

I appreciate your thoughts. It’s interesting that some people seem to think it’s obvious that a majority vote should be able to amend a constitution. You know, I’m sure, that the United States Constitution does not allow majorities to amend. Do you think this is a terrible flaw in the Constitution?

The points that my article was making have nothing to do with the merits of a particular judicial decision; they’re about the structure of the political and judicial process. We could have a system where majority votes override judicial interpretations of the constitution, and that would reliably get rid of decisions that majorities don’t like. But please ask yourself whether that’s really a system you would like to live under. The American Constitution gives unelected judges the power to strike down laws with full knowledge that they will make unpopular decisions. That’s the whole point, really: any decision that protects a minority from an oppressive majority will be unpopular with that majority. Unless you think majorities never oppress minorities, or you don’t care about minorities, giving this kind of power to judges probably makes sense, and allowing a majority overrule doesn’t.

John Hagan forwarded Mr. Roosevelt’s reply to me and I replied to Mr. Hagan:

If Mr. Roosevelt just wanted to make sure that Constitutional amendments require more than a simple majority popular vote, but a two-thirds majority in both houses of the legislature, why didn’t he just say that? But that’s not the argument he made. Or rather, that’s only part of the argument he made. His real argument has to do with how to assure the inevitable rolling forward of progress in terms of the establishment of new “rights” by judges.

Since he finds a majority popular vote to amend the state constitution so offensive, does he explain why a one-vote majority (i.e. a simple majority) among seven judges, based on nothing but their own whimsical reading of the equal protection clause, should be able to wipe out a statute passed by a whole state, not to mention an institution central to thousands of years of civilization? Does he explain why a one-vote, simple majority among seven judges should be able to impose on the state an institution that never existed before, same-sex “marriage”? Does he explain why four judges have the power not only to overthrow a statute passed by popular referendum, but to write a new law out of thin air, while the entire state doesn’t have the power to change its constitution to cancel out the judges’ usurpation of the legislative power?

Obviously, the answer is that Mr. Roosevelt regards anything done in the name of expanding rights for designated minority groups to be privileged over the ordinary power of a people to make their own laws and constitution. Just get a single judge to tilt a decision to invent a new right, and, under the Roosevelt dispensation, it becomes impossible to undo, because it would require a difficult or impossible to reach super majority.

Roosevelt’s reasonable- and modest-sounding argument masks an agenda for judicial tyranny consisting of the invention by judges of new rights and even wholly new institutions (same sex “marriage”) that no political community ever agreed to. It’s astonishing how these supporters of tyranny see themselves as merely reasonable fellows. Roosevelt would really be at home in the EU, where even the pretense of self-government has been overthrown, and a whole continent is now ruled by a bureaucratic dictatorship acting in the name of equal rights.

Mr. Hagan forwarded my e-mail to Mr. Roosevelt, who replied to him:

Thanks; I appreciate your civility and the fact that you all clearly care about the Constitution, as do I, though we do seem to have slightly different views of it.

November 25

I wrote again to John Hagan:

Another point I should have made to Kermit Roosevelt. Under existing California law, the state constitution can be amended by a simple popular majority vote. That was the basis of Proposition 8, which everyone was aware of at the time that it was being contested. Those were the rules under which everyone was operating and under which the vote took place. So Roosevelt isn’t simply arguing for a change in the law that would alter California’s constitutional amendment process in the future, requiring a two-thirds majority in both houses of the legislature to pass a amendment. He wants the California Supreme Court to overturn the lawful results of Proposition 8, because he thinks it’s wrong for an amendment to be passed by popular vote. He wants to impose on the people of California his notion of what the law ought to be, in order to void a lawful, constitutional act by the people of California. How else can his position be constructed?

Notice the mild, reasonable, theoretical-sounding way he puts it:

“We could have a system where majority votes override judicial interpretations of the constitution, and that would reliably get rid of decisions that majorities don’t like.”

“We could have.” As though we were debating what the constitutional amendment system of California ought to be. But in reality it’s not a matter of what the law “ought” to be or of what we “could” have. California already has a system whereby a majority vote of the people can amend the state Constitution. That is the system under which Proposition 8 was passed. By presenting that existing system as though it were a mere possibility or proposal for the future, a proposal with which he disagrees, Roosevelt conceals the fact that he is seeking to overturn an already-completed, legal, constitutional vote by the people of California, a vote he doesn’t like because he thinks the judicial invention of ever-new rights must have priority over all other considerations.

John Hagan writes:

Good point! I noticed that Mr. Roosevelt debates in a passive voice, and that manner of debate can be disarming. No state or national constitution is safe when an individual like Roosevelt uses it as a vehicle to create rights out of thin air on the basis of non-discrimination.

Terry Morris writes:

Prof. Roosevelt wrote:

any decision that protects a minority from an oppressive majority will be unpopular with that majority.

Whoa!, wait a minute. So any decision by a judicial body deemed by Roosevelt and those who think like him to “protect a minority from an oppressive majority” is legitimate and consistent with the vision of the founding fathers? In what way exactly is the majority in this case “oppressing” the minority? In 2000 prop. 22 passed in CA by a much larger majority. This means what?, the greater the majority the greater its oppression of the (a) minority?

Unless you think majorities never oppress minorities, or you don’t care about minorities, giving this kind of power to judges probably makes sense, and allowing a majority overrule doesn’t.

Roosevelt is talking about the U.S. Constitution and trying to project its internal provisions for its own amendment onto the State of California and its governing constitution, and all forty nine other states in this union by extension. Classic liberal centralization of political power—I do not believe conservatives are contending for an overthrow of the provisions of Article V, U.S. Constitution. Liberals do that, not conservatives. All because he thinks that the passage of Prop. 8 in California amounts to nothing more or less than a majority oppressing a minority. Roosevelt seems to believe that Prop. 8, which was added to the 2008 CA ballot by lawful constitutional means in compliance with CA stipulations for amending its constitution destroys or removes a fundamental and unalienable right from a minority group. On what basis, I should like to know, does Roosevelt found the unalienable right of homosexuals to enter the institution of marriage? But I would suggest to Roosevelt that if he doesn’t like the way the CA constitution is lawfully amended that he vie for a change in the way it is amended. If he wants to project the amendment provisions of the U.S. Constitution onto that of California, then nothing is stopping him from utilizing the current popular referendum method in CA for doing so. But that’s not the liberal way, is it. No; Roosevelt & Co. should rather do it by judicial fiat.

I think what Roosevelt is contending for essentially is the right of a minority to oppress the majority. Unless he thinks that minorities cannot oppress majorities, or he doesn’t care about majorities—

Sorry about that. You’ll have to pardon my temporary lapse of memory. The term “minority” means, by definition, “the oppressed.” Whereas the term “majority” means, by definition, “the oppressors.” Therefore, the ends always justify the means to overthrowing the will of a majority, and the greater the majority, i.e., the more oppressive this group is, the more legitimate is any means utilized to overthrow its will. So when is the conservative minority in America going to have its day?

Terry M. continues:

I see now that you beat me to the punch. Darn it! ;-) You put it better and in clearer terms than I did I think.

Something else to consider:

There are now, including Prop. 8, thirty separate state amendments to their internal governing constitutions prohibiting “gay marriage” within their own borders. These amendments were all passed in accordance with internal state law in the respective states by the citizens of those states. Many (most) of these amendments passed by two thirds or greater majority vote. Proof positive that my rule is right—the larger the majority the more oppressive it is over a given minority.

I don’t think Professor Roosevelt understands the U.S. Constitution at all. He may care about it on some level, but he doesn’t understand it. He needs to dig deeper into its principles, consider the meaning of amendments IX and X, the distribution of political powers among the several branches and spheres, the federal principle, the national-federal structure, and so forth and so on. The Federalist Papers would be a good place for him to start.

LA replies:

Unfortunately Amendment 10, as far as I know, has no judicial history. It’s never been used. It just sits there. Given so many things that have been done that obviously disregard Amendment 10, I don’t tknow that an appeal to it at this point is efficacious.

Laura W. wrote to Kermit Roosevelt:

I read with interest your recent article in the Christian Science Monitor about judicial authority and same sex marriage. I also read your remarks to a reader of the website View from the Right. Your thoughtful reply to this reader speaks to your integrity and an apparent willingness to engage in meaningful dialogue on this volatile issue.

In that reply, you stated:

“That’s the whole point, really: any decision that protects a minority from an oppressive majority will be unpopular with that majority. Unless you think majorities never oppress minorities, or you don’t care about minorities, giving this kind of power to judges probably makes sense, and allowing a majority overrule doesn’t.”

What happens, however, when the interests of two minorities collide? Aren’t judges then forced to appeal to some higher standard, something other than the rights of minorities against majorities?

Same sex marriage is clearly such a case. Here we have the “rights” of one minority pitted against the “rights” of another. Children under the age of ten years old constitute a minority in our society. It is reasonable to define certain of their psychological needs as “rights,” especially if we are going to define a conjugal relationship as a “right” for homosexuals. Studies show that children who grow up in homes without adults of both sexes suffer negative consequences in adulthood. Many are incapable of establishing healthy relationships with the opposite sex. Here is a piece that examines these studies.

Unfortunately, children are not a vocal minority. Perhaps you are stating that judges should favor the most vocal and politically powerful minorities in society? All in all, I am confused by your assertion that this issue is a clear-cut instance of protecting one minority against the oppression of a majority when it seems to represent the efforts of one minority to usurp the rights of far-less powerful minority.

Kermit Roosevelt replied:

I think the interests of children are very important. But banning same-sex marriage is a strange way to promote them. If the concern is really that children need one parent of each sex, it would make more sense just to forbid homosexuals from raising children. Marriage doesn’t have much to do with that. And, of course, we should then have similar laws for single heterosexuals.

It’s also important to keep in mind what the alternatives for these children are. If we’re talking about adoption, I think that even if the best option for a child is a household with one parent of each sex, a homosexual couple is better than not being adopted. Unfortunately, there just aren’t enough two-parent households out there that want to adopt. For the children that homosexuals have themselves via assisted reproduction, it’s a more complicated question, but I think it’s strange to say that those children would be better off if they’d never been born.

Laura W. replies:

Dear Mr. Roosevelt,

Thank you for your thoughtful reply.

Your assertion that “marriage doesn’t have much to do with that” conflicts with Western tradition and the marital traditions of all functioning societies throughout history. Up until now, all societies have seen marriage as the means of ordering family life, not simply as the public recognition of an emotional tie. Divorce and custody laws recognize that marriage is an institution for children, as well as for participating adults. Perhaps you believe we should not interfere in the private affairs of citizens by establishing legal protocols for how children are treated during divorce? Your assertion that marriage “has nothing to do with that” suggests that custody laws are fundamentally intrusive.

To deny a married couple, whether homosexual or heterosexual, the right to raise children is to violate our common definition of marriage and would be deeply unacceptable to both homosexuals and heterosexuals. The fact that marriage does not always come with children doesn’t mean the institution isn’t shaped by their needs. Even a couple with no offspring upholds the needs of children by participating in an institution that recognizes their essential dignity and worth as human beings and that calls upon adults to restrain their own interests in favor of those without political power.

You say:

“It’s also important to keep in mind what the alternatives for these children are. If we’re talking about adoption, I think that even if the best option for a child is a household with one parent of each sex, a homosexual couple is better than not being adopted. Unfortunately, there just aren’t enough two-parent households out there that want to adopt.”

I think you are unaware of the brutal competition among heterosexual couples for infants to adopt today. Have you noticed that many couples travel to China and Russia to adopt? That is because there simply aren’t enough children to adopt here. If there were a profound crisis of unwanted children, our society has a long tradition of allowing unwanted children to be raised by foster parents or single adults. Often unwanted children are taken in by their own relatives. There is no crisis of abandoned children.

Would it be good for society if more children were conceived in laboratories and raised by homosexual couples? Children universally crave a connection with their biological parents. This is true in all times and all places. Children who are the offspring of anonymous sperm donors are intentionally orphaned. Fatherlessness should be avoided, not encouraged by society. A nation that approves of this practice says to the young, “Your interests are secondary to the happiness of adults.”

Thank you again for your reply.

Laura W.

Kermit Roosevelt replies:

I wish it were so. See this article:

“If you are looking for a child to complete your family, then the equation is working in your favor because, at present, there are as many as 134,000 children awaiting permanent homes in the U.S. Foster Care System.”

Laura W. replies:

Sad to say, but these children are overwhelmingly older children, not infants, and most have come from abusive or chaotic homes. Potential adoptive parents—both homosexual and heterosexual—recognize the difficulties these children face in life and are not willing to take on the immense task of socializing them. That’s why thousands of American couples travel abroad to adopt infants who have not been psychologically harmed. The plight of these children you mention affirms what I am saying. It points to all we stand to lose if we tinker with the foundation of a stable childhood. Without the protection of a legal compact between men and women, children withstand permanent psychological harm that no amount of love can correct. You can say those invisible needs of children are not there, assert that children don’t really long to know their real father, and argue that children can adjust to any circumstances, but in doing so you disregard a century or more of hard research in the social sciences. More importantly, you risk taking from the young their very humanity and turning them into exchangeable goods.

Posted by Lawrence Auster at November 20, 2008 10:16 PM | Send

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