A Stitch in Haste

Professor Larry Solum recently re-posted the entry from his ongoing project, the Legal Theory Lexicon, on the "Counter-Majoritarian Difficulty." Given the recent developments in same-sex marriage litigation in New York, Nebraska and elsewhere, it's also a good time for me to repost my commentary on his entry from June 2005, titled "On Gays and Democracy."

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Noted legal theorist Larry Solum has an ongoing project called the "Legal Theory Lexicon" in which he drafts introductory discussions of various topics in legal theory and jurisprudence. The entries are specifically designed for incoming law students and are suitable for lay readers.

Solum recently posted an excellent new entry on the "Counter-Majoritarian Difficulty" (also available here), which is basically the conundrum of what should be the limits of unbridled democracy (i.e., mob rule) and what role should judicial review by (generally) unelected judges play in the government of a free society?

Those following the gay marriage debate and the various litigations regarding "backlash" legislation, amendments and voter initiatives should consider Solum's entry an absolute must-read. It will give you the weaponry you need to debunk the fiction that the most basic rights are, or should be, up for a majority vote.

Solum identifies the following reasons why it may be valid to limit the power of the majority:

--Insular Minorities: The one I tend to invoke the most when blogging on gay rights — one example here. The argument is that most political factions or constituencies grow and shrink, rise to power and fall from power, win politically and lose politically, at least some of the time over history. But when you have a permanent minority, with no hope of ever becoming a majority, then the "game" of politics is unfairly rigged against them and they are entitled, if not to "special rights," then at least to a check on the ability of the majority to permanently disempower or oppress them. Sound familiar?

--Competing Values: A free society may simply choose to value certain positives more than (limitless) "democracy." Such values might include "liberty" or "equality" or "privacy." As someone said recently about Nebraska's anti-gay amendment: "If 99% of Nebraskans voted to bring back slavery, it would still be wrong." Although this argument can be quite useful when arguing for gay rights, and can have some appeal to libertarians, it seems to me a philosophical framework better suited to liberal supporters of gay rights. But if the shoe fits, then kick somebody with it.

--Dualism: This justification for counter-majoritarianism holds that, since politicians don't always vote based on what their constituents want (in fact, voters may not even know what they want regarding a novel question), the courts may in fact be protecting the will of the majority by striking down laws if judges believe politicians have "strayed" from voting based on popular opinion. This tranche clearly doesn't apply to voter initiatives (although it can apply if, as in the case of gay rights, popular opinion is changing significantly). In any case, dualism is not as important for gay rights as the first two justifications.

The sophomoric bromide that "it should be left to the voters" does not deserve the respect that people are giving it. Certain questions, indeed the most important questions, often should not be left to the voters. That's why we have a Constitution, including a Bill of Rights and a powerful Fourteenth Amendment.

Those working to "win hearts and minds" in the struggle for same-sex marriage, and for gay rights generally, need to equip themselves with the intellectual tools to succeed in that endeavor. Saying "Pretty please?" over and over will get us absolutely nowhere. A solid understanding of the Counter-Majoritarian Difficulty and how to disarm the "we're a democracy" crowd is absolutely essential to the debate.

Please read Solum's entire entry — and use it.