The courtroom, the nuptial chamber, the voting booth


So there’s good news and there’s bad news. The good news is that anybody can marry anybody in a lot of places now, regardless of his and/or her abdominal plumbing, should the anybodies choose to do so for whatever reason.

Many people I know are very happy about this for very sound and concrete reasons: the love of his life is now covered by his insurance, for example; the love of her life can now live with her in the US, and need not fear deportation. These are not small matters. Those who are happy about it, I’m happy for them.

The bad news is that it’s awful when anything good comes out of the courts. It encourages delusion on the subject. People need to get it through their heads that the courts are fundamentally a reactionary institution, and judicial review of legislative enactments is grossly undemocratic.

Fortunately good things from the courts are rare, and the Supreme Court amply confirmed the characterization above, in every other decision it recently handed down. The most gross and (to many friends of mine) the most shocking was its green-light to the states to disenfranchise black folks.

Which is, to be sure, pretty shameless. But it’s surprising how selective people are in their indignation on this subject. Mass disenfranchisement has been a routine and ongoing process for years. The Original Sin, of course, is the exclusion of non-citizens, but nobody much seems to be bothered by that; more recently, the exclusion of convicted (or rather, plea-bargained) felons is equally uncontroversial. But in a country which routinely imprisons a far larger proportion of its people than any other, and imprisons black folks much more often than white ones, the felon clause disenfranchises a lot more black folks than Federal oversight keeps on the rolls.

Of course, since I think voting is a hollow charade anyway, I can’t get too worked up about disenfranchisement.

You might argue that disenfranchisement is one of the reasons why voting is useless. Perhaps you’d have a point. I really wonder, though, whether access to the ballot in itself really did anything substantial to better the lives of black people; one would like to see that case made. Certainly the pathetic, toothless, sellout Congressional Black Caucus doesn’t constitute much of an advertisement for the empowerment of black voters.

Other legal provisions, e.g. about discrimination in employment, certainly made a difference, though not as big a difference as one would like — the stats are still pretty dismal. But voting? I have me doubts.

Oddly enough, one of the few kinds of voting for which I have any use at all is the ballot initiative, much loathed by liberal policy wonks for the mischief it allows the public to commit against the orderly processes of technocratic administration and institutional aggrandizement. So there is a certain sour irony in the fact that gay marriage in California is entirely and purely a matter of government by court, against the clearly expressed will of the state’s benighted public.

This poses — or ought to pose — a question for liberals: do you want democracy, or do you want certain policy outcomes dear to your heart? You’re unlikely to get both.

15 thoughts on “The courtroom, the nuptial chamber, the voting booth

  1. Unfortunately, ballot initiatives often tend to be bankrolled by folks with deep pockets and unsavory agendas – your example being the Mormon church – so they aren’t really much of a clean representation of democracy.

    • Not in any strong sense, of course — at least, not with our rulers’ consent. But ballot initiatives bear a closer resemblance to democracy than any other political institution in this country; and liberals nearly always hate ’em.

  2. The older I get, the more I care about the ends than the means. I was happy that the loathesome robed ones made the right — and obvious — decision on gay nuptials. I also loved Roe v Wade, however dubiously decided that may have been.

    I think no more of the Court for doing the right thing on DOMA; and am in fact encouraged in my ongoing cynicism about the robed ones that 4 of them dissented. In other words: I got the outcome I wanted, with no illusions about the “justices.”

    • You’re right: it’s the outcomes that matter. I would rather have had the same outcome a different way, but really, so what?

  3. I’m sympathetic to the argument that we shouldn’t leave it to the majority to grant rights to minorities. The initiative process in California is especially problematic in that it lets a simple majority amend the state constitution.

    • And this is a problem because…?

      Oh, I know. Rhetorical question. The South, the Fifties and early Sixties. Wallace in the schoolhouse door. This marked us all — those of us of a certain age, I mean — but it was rather an exceptional moment.

      And then of course the notion of ‘rights’ needs some thinking about. Are there any rights other than those won, and sustained, in conflict?

      • It’s a curious idea, that the majority knows best…

        Digressing slightly, there’s something to be said, I think, for an unwritten constitution. A written constitution that establishes a floor for rights (or ‘rights’) soon becomes a ceiling, and there’s a strong tendency for the ceiling to drop.

    • Disembedding reply here —

      Indeed there’s no particular reason to think that the majority ‘knows best’, however we understand that phrase. But is that proposition even necessarily part of the case for democracy? One has certainly heard the argument made on that basis, but perhaps there are others. Then of course one could also turn it around — what’s the case that some particular self-constituted — and if not self-constituted, how constituted? — minority would ‘know best’ either?

      • It’s also weird the assumption one policy–by whatever means it’s come by–must be enforced globally and forever. It’s completely at odds with how people work not to mention the fact we’re wrong about just about everything. We should just make a decision at the time it needs to be made, its scope limited as much as it can be, and be humble enough to admit we might later decide it was the wrong one.

        Whether anarchism can be made work practically; as long as here volleying hypotheticals I can’t see a logical alternative that makes any sense.

  4. I really wonder, though, whether access to the ballot in itself really did anything substantial to better the lives of black people…

    I wonder if voting hasn’t become meaningless in proportion to enfranchisement–Sure we’ll let the rubes vote; just make sure whatever they choose they’re voting for the same thing.

  5. The attitude about the Supremes reminds me of attitude toward the filibuster, which is that it’s an essential check in the system if it leads to a result the speaker likes, and otherwise it’s antidemocratic and ergo wrong.

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