The evening after the California court decision ruling Proposition 8 (California’s voter-approved gay marriage ban) unconstitutional, I posted this status update on my Facebook page:
[Melinda Lewis] would like to thank Judge Vaughn Walker for single-handedly lifting my post-primary depression. That’s why we have three branches, folks!
Later that night, one of my former students initiated an online conversation about the role of the courts in overturning what, in this case, was obviously the will of the majority. She asked some very profound questions about who should determine public policy in this country, and about the role of the courts within our democracy. She cited examples where time has definitively proven that the courts were correct, such as desegregation of public schools, and much more questionable decisions, such as this year’s campaign finance law.
This is why I love teaching.
Early the following morning, I crafted a response, and that exercise got me thinking, anew, about the way in which our system of government works, and why the courts are, to me, such a critical component.
I responded, “It’s a good question. The key is not whether the will of “the people” is being upheld; while few would argue (I am actually one of the few, but that’s another issue!) that the legislative and executive bodies’ roles are to represent the people, the courts’ role, according to our system of government, is very definitely not. The courts are accountable only to the Constitution, not to public sentiment (which is why, of course, they’re not elected). Of course one’s interpretation of what accords with the Constitution can differ, which is why the appointment of judges is so contested. You’re absolutely right to point out examples where the courts’ judgments have countered public opinion in a way ultimately judged to be correct, and also to point out the fallibility of the judiciary. Even in the case of the campaign finance decision, though, Congress was given a sort of “blueprint” of the kinds of campaign finance laws that would pass constitutional muster, although it remains to be seen if they can get the political will to do so. That’s what I mean by the three branches–people call it a separation of power, but it’s not so much a check and balance on each other, really, as it is the inclusion of a branch accountable only to our Constitution, our core government principles, so to speak, not to popular sentiment (which is the only way that a minority’s rights can ever be protected–if everything went according to the will of the majority, there would be no such vehicle). So, in essence, it’s not that the Court has a “right” to overturn a popular vote, but, rather, that no legislative body or group of citizens has a “right” to pass an unconstitutional law.”
We had a couple of additional exchanges, related to the passage of clearly unconstitutional laws as political messages and organizing vehicles, and the resulting distortion of the policymaking process.
But the idea to which I keep returning is the courts as protector of those who, by very definition, are likely to be excluded in the more “democratic” functions of government–the minorities whose rights are not, well, ‘popular’ enough for popular sovereignty.
Maybe it’s because I’ve spent so much of my career representing a group–undocumented immigrants–who most often come out on the short end of votes subject to the will of the majority, but there are many moments, in our history and still today, when the beauty of our constitutional system is almost breathtaking, in its power to lift up the most downtrodden.
Even when it would have been expedient, like when we were sued by anti-immigrant organizations trying to overturn the instate tuition legislation for which we had fought so hard in the Kansas Legislature, I wouldn’t use the “courts should not overturn the will of the people” argument. Because you just never know when you might need that one yourself.
As an advocate of social justice, first and foremost, I celebrate fervently the power of the courts to do what’s right, even if that means telling many, many people that they’re wrong.