The majority always rules
Either through the ballot box or the courts
When the people of Ireland voted by referendum last month to legalize same-sex marriage, it set off an uncertain volley of celebration and unease. To be sure, enlightened thought was unanimous in saying, it was welcome news that gays and lesbians in Ireland would now have the same right as heterosexuals to marry. But surely there was something unsettling in the right of the minority being put to a vote of the majority. What if it had gone the other way?
A contrary view held that, if anything, it was better to have the rights of the minority upheld in this way, with the express consent of the majority, rather than, as the United States has just done, by a ruling of the Supreme Court. But both sides agreed there was a critical difference between the two: Rights were either advanced by a vote of the majority or by a decree of the courts. Take your pick.
I don’t think this distinction stands up, either in principle or in practice. The laws and institutions of a democracy, by definition, are and must be those preferred by the majority. If they are other than those the majority chooses, you do not have a democracy. But since there is no way, in a democracy, to long impose upon the majority what it will not accept, the point is moot. The majority won’t have it.
That goes especially for those fundamental laws a society thinks to place in its constitution, to which all other laws must conform. These typically include the sorts of protections for individual and minority rights found in our own Charter of Rights, or the American Bill of Rights. The purpose of those measures, it is true, is to protect those rights from majority encroachment. But they exist because the majority thought to enact them.
When people say, then, that “the majority cannot be allowed to vote on minority rights,” I do not know quite what they mean. How do they suppose minority rights come into being, except by a vote of the majority? I do not mean this in some abstract sense. Rights may indeed exist independent of the society that enacts them, as a matter of natural law, or God’s law, or just what’s fit and proper. But they exist here on Earth, as a matter of legal and political reality, be- cause majorities decide they should.
This is a point that seems to elude conservatives as much as liberals. I am enough of a judicial conservative to believe that when the courts rule on a constitutional question, they should not substitute their own views for those of the legislatures. But I am enough of a judicial liberal to say that the mere act of judicial review is not, in and of itself, judicial activism. Rather, the courts are engaged in comparing one law, passed by the majority, with another, higher law, passed by another, larger majority. So long as their reading of the latter is consistent with the plain sense of the text, no violation of majority rule is implied.
The 14 th Amendment, on which this week’s U.S. Supreme Court ruling was based, was passed in 1866 by a concurrent resolution of both the U.S. House of Representa- tives and the Senate. It was subsequently ratified by the legislatures of 37 states (the last, Kentucky, in 1976). While I recognize that opinions can differ on this, it seems to me a reasonable reading of the words “No state shall … deny to any person within its jurisdiction the equal protection of the laws” is that no state shall deny any person within its jurisdiction the equal protection of the laws — including the laws governing marriage. So the court’s ruling, far from defying majority rule, seems to me to represent it — if not the temporary majority of the moment, then the enduring majority embodied by the constitution.
Yes, but … surely you would not put such matters to a direct vote of the people? Perhaps they can be entrusted to judges and elected representatives, acting at one remove from the vulgar public. But a referendum? Opponents like to scare themselves silly thinking up intriguing historical counterfactuals, as in: Would you have let southern whites vote on rights for blacks in 1964? Well, no, not if there were no provision for such a thing in law. Southern whites could not have voted on whether blacks should have equal rights under the constitution: The constitution already said they did.
As for the Irish, the vote in question was whether to amend their constitution, since that is the manner prescribed by the Irish constitution for its amendment. But article 40.1 of the same constitution already provides that “all citizens shall, as human persons, be held equal before the law.” Who ratified that? The majority. So whether the referendum had passed or failed, presumably same-sex marriage would have come to Ireland at some point, and whether it did or not would in either case depend entirely upon the will of the majority. In any event, it’s an odd sort of logic that holds up the demonstrated willingness of the majority to vote for minority rights as proof of the dangers of letting majorities vote on minority rights. What if it had gone the other way? Who knows? It didn’t.
The point is, whatever protections you might think to enact against the majority can only be enacted by the majority. It isn’t a matter of whether you’d “let” them vote on it. One way or another, the majority will have its say.
The court ruling represents the the majority in the constitution