Gay Marriage & Republicanism
Jonathan Rowe on May 16th 2008
One of the talking points of the wingnuts is America is a republic not a democracy. Although a few folks I respect have said such (notably Walter Williams), most folks who parrot this line don’t know what they are talking about. America is and was founded to be a democracy, a liberal democracy in fact. “Democracy” simply means “voting” — if there are legitimate elections, then there is “democracy.” (If the elections are a sham, then it’s a “banana republic” so to speak.) America’s Constitution provides for elections, ergo America is a democracy. The term small l “liberal” simply means there are individual rights that majorities cannot abridge. So that’s liberal democracy in a nutshell. Elections by the majority with individual rights that the majority cannot abridge.
Francis Fukuyama said something along the lines of we are all “liberal democrats” now. Meaning Democrats, Republicans, Libertarians, almost all third parties (except those who want communism or theocracy) are “liberal democrats” (again, small l, small d), even Pat Robertson is a liberal democrat!
That said, the word “democracy” breaks down further. You could think of “democracy” as a genus with different species. One species of “democracy” is republicanism. Another species is direct democracy. The Framers of America’s Constitution had strong distaste for the kind of “direct democracy” which they, correctly in my opinion, associated with mob rule. A majoritarian mob could vote away the rights (or the property!) of the minority. As such, America’s Founders put many republican checks on majoritarianism and tended to call such a system “republicanism.” That’s the kernel of truth in the otherwise mindless mantra, the United States is a republic, not a democracy.
These republican checks include such things as 1) separation of powers, 2) elected representatives as opposed to the people themselves writing statutes, 3) sometimes having elite electors instead of the people themselves putting politicians into power (think of the Electoral College or “super delegates”), 4) limited enumerated powers of government, 5) judicial review, and 6) the notion of inalienable rights itself which means individual rights that majorities cannot abridge. This list is not exhaustive just illustrative.
One modern example of “direct democracy” or “mobocracy” which America’s Founders would have hated (this is what they railed against, when they criticized “democracy” and lauded “republicanism”) are BALLOT MEASURES, like those they have in California. Prop. 22 which tried to ban gay marriage is especially anti-republican because not only is it mobocracy, but it’s the case of the majoritarian mob taking away rights from individuals or minority groups.
But it gets even worse for the anti-gay marriage forces. All of California’s republican institutions seem to be in line with gay marriage. The legislature twice voted in gay marriage. This puts to rest the notion that the CA Sup. Court in the recent pro-gay marriage decision usurped the “role of the legislature.” No, they were just enacting the legislature’s will. That’s two branches of California’s republican government that support gay marriage. The Executive branch seems somewhat on the fence, but is arguably pro-gay marriage. The governor is certainly pro-gay rights. He vetoed the legislature’s gay marriage bill ONLY because it conflicted with Prop. 22. And now that CA’s top court has ruled their state constitution demands permitting same-sex marriage, the governor said he does NOT support amending said constitution via ballot referendum to overturn this decision. So arguably, all three branches of republican government support gay marriage in California. Everyone is in line except the mobocracy, which in 2000 voted 61.4 percent to 38.6 percent to ban gay marriage. And they’ve got a mechanism of “direct democracy” — the ballot referendum — which may permit them to overrule the court’s recent decision. That’s democracy trumping republicanism exactly as America’s Founders would not have had it.
Remember folks we are a “republic” not a “democracy.” And in California it means they ought to recognize gay marriage regardless of what the mobocracy thinks.
Filed in The Belfry, The Bench, The Bureau
Damn, it Rowe! I just spent half an hour writing the exact same thing into the comments of Jason’s original post. And here you manage to explain it much better than I ever could, and invoke the founding fathers to boot.
I did go farther, though. While in principle, I oppose direct democracy for much the same reason that the founding fathers did, I’m glad it exists right now.
Because I fully expect that my fellow Californians will reject the upcoming constitutional amendment. And I want the nation to see that this isn’t just an example of out-of-touch officials enacting some crazed social scheme over the objections of the citizens, but that the people themselves understand and support the Idea that same-sex couples are entitled to the same rights and the same respect that we’ve historically conferred on opposite-sex couples.
Jon,
Regarding America be a “Democracy” vs “Republic”, it is clear our nation shares characteristics of each … as you have nicely explained.
An examination of the Bill of Rights and the last couple of elections make it clear (quite a dichotomy, no) that our nation is not a pure democracy ;-)
I think the tragic reality is that the average citizen doesn’t understand the facts of either term … in fact I’m unconvinced our President does :-(
Well, I’m not sure that judicial review was as much the Founder’s idea as Marshall’s and I’m fairly sure that, Jefferson and maybe even Adams aside, the Constitution doesn’t consider any right inalienable, it just sets up formidable obstacles to their removal. A sufficient super-majority could, after all, re-establish slavery, this time making all blue-eyed people over six feet tall chattel slaves.
Plato, no lover of the masses, was skeptical about democracy primarily because he reasonably suspected that people would get what they wanted as opposed to what they needed. It’s still a legitimate concern and the tyranny of majoritarian mobocracy remains very much with us.
Worse yet, however much we may be a republican democracy, the far greater threat to freedom and to social evolution has been the death of federalism. That at least some lip service is being paid to the notion that California ought to be permitted to legalize gay marriage is a good thing. But will the gay community (gawd, I hate those ‘community’ tropes) accept the proposition that, say, gay marriage should be permitted to remain illegal in Alabama. I somehow suspect not.
But according the the full faith and credit clause, Alabama should be recognizing a Californian gay marriage, absent federal legislation that specifies otherwise. (i.e., the Defense of Marriage Act).
You’re right to call it lip service, though. In my experience “States Rights” is almost always a way of deflecting criticism of an idea that the arguer is otherwise unable or unwilling to defend.
Whether it was George Wallace defending segregation half a century ago, or Barack Obama defending California’s right to allow gay marriage today, it’s always more a matter of which opinions the speaker is willing to express to the voting public than which opinions the speaker actually holds.
And the gay community has been pretty willing to express their views on the marriage debate in recent years.
[...] Jonathan Rowe makes a very interesting argument in the wake of the California Supreme Court’s ruling legalizing gay marriage, that such a decision, overriding the results of a public referendum is fundamentally republican in character, and that most of the other actions which have supported gay marriage have their origins in the same ideas of government which republicanism and the Republican party are based on, specifically the rule of law and the supremacy of the rights of the individual over the rule of democratic (the voting not the party) masses. [...]
But according the the full faith and credit clause, Alabama should be recognizing a Californian gay marriage, absent federal legislation that specifies otherwise. (i.e., the Defense of Marriage Act).
This isn’t the case. Back in the days when some states did and some states did not recognize interracial marriages, there was no federal parallel to this provision of DOMA. Each state chose whether to accept or reject out-of-state interracial marriages, and I believe that this was even upheld in a Supreme Court precedent whose name escapes me at the moment.
Jon, you are spot on when you argue about the hypocrisy of those who oppose the California decision, who in other circumstances insist that this is a republic, not a democracy.
However, you argue that the republic not a democracy distinction is wrong, and then, you demonstrate how a republic differs from a direct democracy, and how it turns out that we have republicanism. Hmm.
When someone says that we’re in a republic, not a democracy, by “republic” they mean the very things you rename “republican checks,” and by “democracy,” they mean the very same things you rename “direct democracy.” They are concerned about “mobacracy.” And, so it seems, are you.
Where these “conservatives” are wrong is in their notion that we still live in the system the Founders gave us. The 14th, 16th, and 17th Amendments all changed things considerably — moving in a more democratic direction (or to what you call, “direct democracy”) and away from republicanism (or what you call, “republican checks”). No living American has lived in the system our Founders gave us. It’s changed since 1787, and even more dramatically since the administration of Woodrow Wilson.
Referendums are direct democracy. They often are the rule of mobs. And courts should check them when they diminish the constitutional liberties and natural rights of individuals.
However, referendums should exist as a check-and-balance on government powers. That is, I would strongly favor referendums that limited tax increases or eminent domain — even ended state income tax completely. But referendums to BAN cigarette smoking in bars, gay marriage, or gambling are fundamentally anti-American.
BTW 5 of the Judges are Republicans. Marriage is a basic civil right that should be attainable by all Americans if they choose. If you have a problem with that check out our short. Produced to educate & defuse the controversy it has a way of opening closed minds & provides some sanity on the issue: http://www.OUTTAKEonline.com
Sentences in the following paragraph from Wikipedia:
The concept of Judicial Review was laid out by Hamilton in Federalist No. 78. The idea that courts could declare statutes void waxed and then waned in England, but it was well known in the American colonies and in the bars of young states. It is found in Chief Justice Edward Coke’s 1610 opinion in Dr. Bonham’s Case, 8 Co. Rep. 107a. That decision arose under a statute of Parliament enabling the London College of Physicians to levy fines against anyone who violated their rules. The doctrine was specifically enshrined in some state constitutions, and by 1803 it had been employed in both State and Federal courts in actions dealing with state statutes, but only insofar as the statutes conflicted with the language of state constitutions.
I suppose if you think there is a significant difference in principle between courts voiding state statutes that they deem to be in conflict with state constitutions on the one hand, and federal courts voiding federal statutes that they deem to be in conflict with the federal constitution on the other hand, then maybe the federal Judicial Review was Marshall’s idea. Since I don’t think there is a significant difference in principle between state and federal Judicial Review I don’t think we can attribute the federal Judicial Review idea to Marshall. Basically, federal Judicial Review was implied and inevitable absent a provision in the federal constitution that prohibiting it and the Founders were almost certainly aware of this. Turning to Wikipedia again, it says ‘Saikrishna Prakash and John Yoo point out, with respect to the ratification of the Constitution, that “no scholar to date has identified even one participant in the ratification fight who argued that the Constitution did not authorize judicial review of Federal statutes. This silence in the face of the numerous comments on the other side is revealing.”‘
Thanks for the great discussion. I’m busy grading so I can’t respond unfortunately.
DOMA definitely has an influence in the Full Faith and Credit issue of equal marriage rights. The right of a state to refuse to recognize such institutions as marriages that are recognized by other states is dependent on the refusing state having an established public policy contrary to the institution whose validity it refuses to acknowledge.
That is, in the absence of DOMA, Alabama would have no problem rejecting marriages from Massachusetts or California because Alabaman public policy is clearly against such recognition. The same could not be said so clearly of, say, Maryland, where the legislative session ended this spring with the Legislature considering four different proposals concerning marriage.
But DOMA changes all that. DOMA establishes a “guilty until proven innocent” assumption that all states do not support equal marriage for same-sex couples unless they explicitly pass public policy saying otherwise. While DOMA does not void the Full Faith and Credit clause in this case, it renders it moot. repealing the anti-federalist DOMA would do nothing to threaten states like Alabama and Hawaii, and would allow the states to once again determine their own destinies while exerting political pressure on “undecided” states like Maryland.