A brief word apropos of Washington’s new marriage law on why, in my view, legislatures – rather than courts or referenda – are the proper venue for securing rights.
With time, I’ve taken a less-and-less fundamental, principled view of the way different organs of power operate within a political system, and more of a realist view. I used to get very hot under the collar about judicial law-making, for example, until it became clear to me that, on the one hand, nobody could agree on what constituted such law-making (was the Rehnquist Court’s “Federalism revolution” law-making or not?) – and, on the other, what principled difference it made whether courts were acting as legislatures, since, in an ultimate sense, they were accountable to the legislatures who appointed them, and hence to the people (or, in some cases, directly accountable to the people, in those jurisdictions where judges are elected).
A more realist view is concerned primarily with the political consequences of structuring your government in a certain way – along with the consequences of uncertainty about what that structure is. So, from that perspective, here’s why I think our elected representatives are the right folks to decide whether, for example, gay couples should have their marriages recognized by the state.
When the courts speak, they say, in effect, that the law already holds this or that. To hold that same-sex marriage “is” legal in a state where it was not previously recognized is, since there is no statute saying this explicitly, to hold that it is implicit in the law that already exists, or implicit in some reality that underpins the law. This, in turn, communicates to the people that the rights and privileges of citizenship are not something they, the citizenry, have secured, but something that must be secured from them. It therefore makes them worse citizens.
A referendum makes people into worse citizens from the opposite direction. When a citizen votes in a referendum, he or she is not obliged to weigh competing interests or objectives. The citizen votes on a single matter, and that is that. This is an infantile form of legislation, because in the real world choices impose tradeoffs. This is obvious if you talk about budgetary matters – the citizenry could perfectly well vote for a balanced budget, to prohibit spending cuts, and to prohibit tax increases, and effectively dare the legislature to get out of the Catch-22. (Some would argue that this is precisely what the citizens of California have done.) But it’s also true in matters that are not budget-related.
When a legislature deliberates, it takes into account not only the preferences of the citizenry, but the intensity of those preferences. If a majority opposes an action, but a minority supports it much more strongly, there is a good chance that the action will be taken – and this may well be a proper result, because the benefit to the minority may vastly exceed the cost to the majority. Moreover, the legislature has the freedom to act as it sees fit, and then wait to see whether apparent opposition dissipates before the next election. It has the leisure, in other words, to deliberate.
I believe, in other words, in representative democracy. On the evidence, that system is the worst system of government – except for all the others. I’m glad that the state of Washington decided what they did. But I’m also glad that they decided it how they did, by a free vote of the people’s representatives. And if the citizens of Washington are not happy with the decisions of their representatives, they can vote the bums out and thereby teach them a lesson about the intensity of the majority’s preferences in this matter.