The Supreme Court of the United States (Source: Supreme Court)
That didn’t take long. In the wake of the Supreme Court decisions in a pair of marriage equality cases on June 26 comes word that the American Civil Liberties Union will challenge Pennsylvania’s ban on same-sex marriages.
That idea roils opponents of gay-marriage who say “using the courts undermines the will of the voters.” That view echoes the opinion of New Jersey Governor Chris Christie, who called the Supreme Court DOMA ruling “insulting,” repeated a vow to veto same sex marriage legislation in his state, and restated his belief that this decision should be left to the voters through a ballot referendum.
So in a democracy like ours, who decides? Is it a “Government of the people, by the people, and for the people” as Lincoln said in the Gettysburg Address?
The problem is we’ve “been there, done that” as a nation —leaving the people to decide a weighty moral and legal issue –with decidedly mixed results.
The concept that the people are the source of power is known as “Popular Sovereignty,” an Enlightenment-era political theory that held that government is created through the will of the people. As Jefferson put it in the Declaration, governments “derive their just powers from the consent of the governed.” It is an idea cemented in the first three words of the Constitution, “We the People.”
But “popular sovereignty” acquired a new meaning in the 19th century, when many American politicians believed that letting the people decide the fate of slavery was the tidy answer to the nation’s most contentious issue.
The question at the time was not whether to completely abolish slavery, but the narrower issue of allowing slavery to move west into new territories being opened in the mid-19th century.
For decades, this question had dominated political debate and increasingly split the country. That fracture deepened violently with the Kansas-Nebraska Act of 1854, the handiwork of Senators Stephen Douglas and Lewis Cass. Under its terms, the residents of these territories would decide whether the territory would gain admission to the Union as a free or slave state.
On its face, “popular sovereignty” appears to be the most democratic of solutions. But allowing the people of the territories to make such a decision had profound political implications, as slaves were still to be counted for the purpose of determining representation in Congress and the number of presidential electors that each new state would receive -–the “three-fifths of a person” Constitutional compromise. (Slaves, of course, were still “property” and had no vote or other rights.)
As a middle-way compromise, popular sovereignty ultimately led anti-slavery forces to coalesce into the Republican Party and extension of slavery would be central in the famed debates between Stephen Douglas and Lincoln in 1858.
But more tragically, popular sovereignty set off a frenzied dash to settle Kansas by supporters of the free and slave positions. This headlong rush led to the murderous conflict known as “Bleeding Kansas” that began in 1856, the true opening salvo of America’s fraternal war. Instead of resolving the question of extending slavery, popular sovereignty hastened the road to the firing on Fort Sumter and the onset of the Civil War in April 1861.
This History and Civics 101 lesson underscores the problem with the seemingly obvious solution of letting the people decide questions so momentous. And it is at the heart of why America has a representative and republican form of government instead of a pure democracy. “Majority rule” may work perfectly for picking the senior class president, making decisions about a school budget at town meeting –or even choosing a governor. But the Framers of the Constitution, in their wisdom –and their deep skepticism of the “people”— did not want to leave some important decisions to a democratic resolution. To many of them, the people were ill suited to make weighty choices and to many of them, democracy was one short step from mob rule and anarchy.
And that is the chief reason we have an Electoral College. It is also the reason that the Framers left the election of senators to the state legislatures (until the ratification of the 17th Amendment providing for direct election of senators in 1913). And it is why they set such a high bar for amending the Constitution.
But here’s the other side of the balance. Pure democracy has also been viewed as a threat to individual rights, a fear voiced by Founding Father John Adams who had written in 1774 of a “government of laws and not of men.” Adams also warned against what he called the “tyranny of the majority.” That phrase would later be echoed by Alexis de Tocqueville in his classic 1835 treatise Democracy in America, in which he wrote two decades before Kansas turned bloody,
“If ever freedom is lost in America, that will be due to the omnipotence of the majority driving the minorities to desperation and forcing them to appeal to physical force.”
Adams and de Tocqueville both recognized the fact that the majority will is not always right or just – a point proven many times over in American history on questions of immigration, suffrage, religion, and civil rights. Can there be any doubt that many of the great strides made in individual rights in this country would have come about much more slowly if left to “popular sovereignty?” Or that the end to segregation would have played out differently if dependent upon the “will of the people?”
It was only fifty years ago, that another popular, outspoken and fiery governor said,
“Segregation now. Segregation tomorrow. Segregation forever.”
George Wallace’s words were surely popular with the white majority in Alabama that had elected him in a landslide in 1962. And many of the people of his state might well have agreed –if the question were put to a referendum.
But as the nation continues to debate the fundamental right to marry in the wake of these Court rulings, which will carry the day? “Popular Sovereignty” and with it the possible “Tyranny of Majority?” Or an inalienable right to “life, liberty and the pursuit of happiness” which includes marrying the person of your choice?
