Senator Orrin Hatch has allowed his name to be placed on an article here, advocating amending the federal Constitution to prohibit two people of the same sex from marrying one another; this based on the routine argument that “procreation...[is] the very purpose of marriage itself,” and whatnot. I’ve explained that I disagree because I believe infertile couples, or elderly couples, or couples who don’t want to have kids, should still be allowed to marry. And I think that marriage is about love, and companionship, and helping one another, not just procreation.
More troubling to me is Hatch’s lengthy argument that the legality of gay marriage “should not be imposed by judges upon people who would not choose it for themselves.”
But the judiciary is part of the people’s government. This is such a common misrepresentation that it must be denounced quite loudly: that courts are somehow not part of the republican process of the Constitution. The judiciary, just like the executive and the legislative, is an expression of the people, and is vested with its power by the people. The people agreed to a Constitution whereby they gave judicial power to the courts, for various reasons, including the fact that the courts are experts on the law. The people also delegated the courts various powers, including the power to strike down laws which are unconstitutional. As Hamilton explained, “the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.” Designed by whom? By themselves? No—by the people.
It’s pure demagoguery for Hatch to say that the courts are “undemocratic.” For instance, he says that
in most cases, advocates turn to the courts to impose their preferred policies on their fellow citizens.... In California, even though 60 percent of voters recently approved a statewide ballot initiative to maintain traditional marriage, the California supreme court is now considering the constitutionality of that democratic action....
But the people created the judiciary, and they have it in their power (though not their rights) to destroy the judiciary power entirely. Given that choice, they have chosen, in their Constitutions, to create a judicial branch and to give to it their authority to strike down laws, even “democratic” ones, which violate the Constitution. To shout “undemocratic” at the courts when they do so is intentionally misleading and emotionalistic. When Hatch calls litigation a “legal assault...poised to strip away th[e] right to self-government,” he is engaging in the sort of rhetoric utterly unworthy of a United States Senator.
The courts exist to put a check on the extremely dangerous power of the majority. Whenever anyone attacks the courts for violating the “right of self government,” what he is really saying is that the majority should have unstoppable power to do whatever it wants regardless of the Constitution. Such claims should be viewed with the severest skepticism, because it is only the Constitution’s limits that prevent us from becoming a government of the mob. As Madison said, if the majority is the sole judge of whether its acts are right or wrong, then “anarchy may as truly be said to reign, as in a state of nature, where the weaker individual is not secured against the violence of the stronger.” This is why we chose to institute a legal system as a check on the majority’s tyranny. The courts are part of self-government.
Sen. Hatch’s article goes on to argue at length that the full faith and credit clause of the Constitution would require one state to recognize the same-sex marriages of other states. I’ve explained at length why he is wrong about that.
But for Hatch, my and other arguments against his proposed amendment “are all designed to let the clock run out. By preventing any substantive protection for marriage, advocates of radical changes in family structure hope to buy time for the legal warriors to gain more ground.” Now, wait a second. Hatch has told us that same-sex marriage is a grave danger to our children and our citizens; that it will cause some sort of harm to heterosexuals throughout the nation. He has not made clear why this harm is so pressing and imminent, however. So why does he insist that we must act now? Perhaps he’s right, that we face a danger from same-sex marriage which must be averted immediately. But given his demagogic argument earlier, I think it more likely that his insistence on immediate action is more an attempt to prevent us from thinking this thing through clearly. When amending the Constitution, I think we ought to be very slow, careful, and thoughtful. But Sen. Hatch is speaking in the sort of emergency terms that would lead us to act without thinking. Hamilton tells us that
This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.
Doesn’t Sen. Hatch’s insistence that we act now, without his explaining just what dangers are posed by the so-called “crisis” of same-sex marriage, sound like the “arts of designing men”? Maybe not—but in conjunction with other things, it’s worth keeping in mind.
I mean, imagine for a second that it’s 1954. The Supreme Court of the United States has just announced Brown v. Board of Ed. Bull Connor comes out on the courthouse steps and says
To permit a handful of liberal judges to force this radical change on the entire nation is wholly inconsistent with the right of people to govern themselves. This debate over [integration] is fundamentally a question of who decides important matters of public policy in a constitutional democracy. Judges who usurp the role of legislatures by imposing their preferred policies on the people dramatically undermine democracy’s vitality and legitimacy. I fear that we have lost sight of this fundamental principle.
In what way does this differ from Sen. Hatch’s statement?
As a United States Senator, Orrin Hatch has taken an oath which “requires [him] to defend the Constitution and the system of government it established.” But now he is arguing that the judiciary system created by that Constitution is utterly illegitimate, that “the people” have the right to “govern themselves” without judicial review, even where doing so arguably violates the Constitution. He is arguing in favor of the unlimited rule of the mob.
In his famous Lyceum Speech, Abraham Lincoln argued that we should be extremely wary of people who advocate mob rule:
[T]here is, even now, something of ill-omen, amongst us. I mean the increasing disregard for law which pervades the country; the growing disposition to substitute the wild and furious passions, in lieu of the sober judgment of Courts; and the worse than savage mobs, for the executive ministers of justice. This disposition is awfully fearful in any community; and...it now exists in ours....
Lincoln was speaking of the worst sort of physical violence leading up to the Civil War, but what he said is true of Sen. Hatch’s contempt for the rule of law, as well. “When men take it in their heads to day, to hang gamblers, or burn murderers,” Lincoln argued, “they should recollect, that, in the confusion usually attending such transactions, they will be as likely to hang or burn some one who is neither a gambler nor a murderer...; and that, acting upon the example they set, the mob of to-morrow, may, and probably will, hang or burn some of them by the very same mistake.” I say that when Sen. Hatch takes it in his head to argue that the courts are not part of self-government, and that they should be held in contempt by the people, and that we should—without judicial review—deny homsoexuals the right to marry, we should recollect that we are as likely to trample on the rights of a minority which is not homosexual, and that, acting on Sen. Hatch’s example, the mob of tomorrow may, and probably will, violate the rights of some other minority—including a racial minority—by the very same mistake.
As Lincoln said, mob violence “is not the full extent of the evil.” Worse yet was the contempt that people would come to have for the rule of law: “by the operation of this mobocractic spirit...the strongest bulwark of any Government, and particularly of those constituted like ours, may effectually be broken down and destroyed—I mean the attachment of the People.” We should be very concerned that a United States Senator is arguing that the courts are antithetical to self-government and republicanism, is stirring up contempt for the rule of law, flattering the mob’s authority to act howsoever it pleases, and consequently breaking down and destroying the attachment of the people to our judicial system.
Those who invoke the “sacred right of self-government” must be carefully watched because usually what they really mean is the “sacred right to govern others,” as Lincoln made clear time and time again. “Near eighty years ago we began by declaring that all men are created equal,” he said, “but now from that beginning we have run down to the other declaration, that for some men to enslave others is a ‘sacred right of self-government.’ These principles can not stand together. They are as opposite as God and mammon; and whoever holds to the one, must despise the other.” Likewise, Sen. Hatch believes that the right of straight people to deny gay people the right to marry—that is, the right of some people to tell others how to live their lives—is the “sacred right of self-government.” That right simply does not exist. The right to govern others is derived only from rightful consent. Otherwise, government becomes merely force without right. And one of the chief ways of ensuring that the power of government does not slop out of rightful consent and into unjust force is judicial review. That is why judicial review has been the enemy of demagogues, bigots, and petty thugs since the dawn of the state, and why we should look with great disdain on those who, like Senator Hatch, try to fool the people into castigating this great element of freedom.
Update: My response to the Clerk is here.
Update: My response to Farkleberries is here.
