A Stitch in Haste

One FindLaw columnist responds to another on the California same-sex marriage ruling:

Vik Amar registers a small disagreement with me over how to characterize the interplay between the California Supreme Court and the voters of California. In explaining why I thought the Cal S Ct was right to apply the principle of equal protection as expounded in its cases, rather than simply following public opinion on the permissibility of banning same-sex marriage, I said "California constitutional law [does not] embrace the view that minority rights turn on the majority's willingness to recognize those rights." Not so fast, says Amar. "In a very real sense, California constitutional law – and all constitutional law, for that matter – does embrace that exact view" because the continued existence of minority rights depends on the majority not amending the constitution to eliminate them. He approvingly quotes the other Professor Amar (his brother Akhil) for the proposition that "[i]n the end, individual [and minority group] rights in our system are, and should be, the products of ultimately majoritarian processes."

You can guess which side I team up with:

Amar is wrong — especially where he posits, "rights in our system are, and should be, the products of ultimately majoritarian processes."

B's natural right to his own life is (partially) dependent on A's willingness not to kill him. That is a metaphysical axiom completely independent of the secondary question of whether the society in which A & B live forbids, condones or celebrates murder. But that secondary question — "forbids, condones or celebrates" — does not define B's right; it only succeeds or fails in securing it.

A constitution attempts to reflect, but not does not define, what is proper and improper in a civilized society.

Different constitutions achieve this with greater or less success. To the extent that a constitution fails to achieve its purposes — one of which must surely be "equal protection" (i.e., protecting insular minorities from the tyranny of the majority) — it is defective.

Dorf wonders whether a constitution that, like California's, does not require a supermajority to amend, especially where protection of political minorities is concerned, is inherently suspect. I think that position is defensible.

In any case, the failure to distinguish between, "this law is unconstitutional, hence this law is flawed" and "this law is constitutional, hence the constitution is flawed" mirrors the confusion — from kids voting kids out of kindergarten to U.S. foreign policy celebrating Middle East democracies that elect terrorists to high office — between "democracy as a means to a noble end" (inherently correct) and "democracy as a noble end in itself" (not inherently correct).