6.30.2003

So the American Supreme Court (SCOTUS) just struck down laws criminalizing sodomy. Is this democracy? As much as I personally applaud the decision, it raises a question of democracy.

As a Canadian, this is largely a theoretical question, though our own Supreme Court has similar features. Several states have had referendums enshrining marriage as a heterosexual question. The people chose explicitly to do so. I won't go into whether I agree with it or not (that should be evident form the above). Imagine if the SCOTUS declares marriage not to be the domain of the heterosexual somewhere down the line, is that democracy? Even if I personally think it is the right thing to do, is it right to overturn the will of the people? Many states have already passed laws giving near-equivalence staus for homosexuals. It seems to be an inexorable, slow to be sure, but unstoppable march towards full equality. The American Constitution explicitly allows for this kind of decision and it does not seem out of bounds in overturning the state in, what it feels is, a federal and constitutional jurisdiction.

But, reduced to simpler terms, it is a group of nine who overrode the will of millions. Fine and dandy when one agrees with them but perhaps less palatable when a desicion comes down in direct opposition to one's beliefs, as this decision surely must for wide swatches of the American populace. Looking back at slavery, it took a long time for a great many people to realize that it was wrong and the work is still incomplete and leaves a legacy that burdens American society to this day. Abortion is another issue that has been decided by the SCOTUS and not by the people. The topic generates a great deal of acrimony and will continue to do so for the foreseeable future. Clearly, from a personal point of view I would not have wanted either of these decided alone by the people. The tyranny of the masses is a frightening thing for any self-respecting elitist but the masses cause unrest and it is always unwise to rouse them beyond the usual distemper.

It is a difficult point to argue that people would have eventually come to their own conclusions about slavery. Money and self-interest have always been known to master moral obligation and to quell a disturbed conscience. Justification and rationalization flow easily in these cases and their owners are more than willing to overlook any flaws in the foundation for their rationale. Clearly, a force from above is required to impel such societal change even if it is to the detriment of democracy. Then, the question that follows is: how to defend against the potential for oligarchy? The cultural norms are not being set by the community but rather by a group that does not always conform to the majority view. Rights and responsibilites are determined by the culture and one of government's duties is to elucidate and enforce those rights.

The American recourse is the Constitutional amendment. SCOTUS must obey the Constitution and, if brought into force, an amendment would overturn SCOTUS. It seems highly unlikely to me that this is a plausible outcome. Even should one occur it would be a matter of decades, perhaps even a century, before it was overturned, one that would read like the liquid paper scarring of the prohibition and its dismantling.

The beauty of the American Constitution constantly amazes but demands as much from its populace at it gives. SCOTUS functions as an accelerator of societal change, the "educated elite" handing down "superior theories of culture" based on "well-measured reasoning". It is oligarchy in a democracy, a taste of benevolent tyranny that society would seem to accept in the long term. Or perhaps it simply enforces conclusions that people would like to assume they would have eventually reached themselves.