Democracy Constrained

Now - let's make one thing clear from the start. Rachel Maddow is supposed to be an intelligent and thoughtful person, so I don't know that she actually said this. Perhaps she did, but when I searched for it, I couldn't find an actual record of her saying it. After all, on the Internet, not only does anyone not know that you're a dog, but it's also easy to pass off unsourced statements as Gospel truth. So I'm going to leave Ms. Maddow out of this, and simply deal with the quote itself, as I was actually able to source someone saying it.

Here’s the funny things about rights — they’re not supposed to be voted on.
Iowa State Representative Bruce Hunter (D-Des Moines).

In any event, here, perhaps, is a better way of putting it:

Democracy is not freedom. Democracy is two wolves and a lamb voting on what to eat for lunch. Freedom comes from the recognition of certain rights which may not be taken, not even by a 99% vote.
Marvin Simkin.

Well, then that raises one rather important question. How does one protect rights, whatever one has decided that those rights are, in a democracy (either a direct democracy or a republic) when the entire structure of the system is set up to allow people to vote? You fall back on a certain baseline level of what is effectively authoritarianism.

In the United States, the governing authority is the Constitution. And despite common opinion to the contrary, some of its provisions and amendments are directly anti-democratic. Let's take the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Let's re-write the beginning, slightly:

The lawfully seated legislative representatives of the people of the United States shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Okay, so “the lawfully seated legislative representatives of the people of the United States” is a rather long-winded way of saying “Congress,” but isn't that what the Congress is? Without having gone through the exercise of amending the Constitution again, even a unanimous vote of Congress may not enact any measure into law that conflicts with the accepted understanding of the current text. (And given the fact that the “accepted understanding” is defined by the nine justices of the Supreme Court of the United States, you can see why there is often so much drama around the nominating and confirmation processes.)

The problem is that the text of the Constitution was, for the most part, composed and enacted some time back. Its most recent Amendment is 40 years old. Modern hot-button topics, like effectively enshrining certain Christian religious values into law, may have been around a long time, but the specific forms that they take today, like the fights over abortion and same-sex marriage are fairly recent developments. So, basically, they aren't specifically covered. And things that aren't covered ARE subject to being legislated, with a 50% +1 vote (well, depending on the specific rules in place, but you get the idea).

And that brings us back to the critically important idea of the (current) accepted understanding of the current text. Back in 1967, when the Supreme court decided Loving v. Virginia, Justice Potter Stewart noted that “it is simply not possible for a state law to be valid under our Constitution which makes the criminality of an act depend upon the race of the actor.” Now, in the closing days of 2011, are we moving closer to an understanding that “it is simply not possible for a state law to be valid under our Constitution which makes the criminality of an act depend upon the sexual orientation of the actor?” Some suspect that there might be, hence the ridiculous theatrics around a “Defense of Marriage” Amendment. (Although the Amendment idea was ostensibly floated specifically to head off such a reading of the Constitution, it's pretty clear that it was designed mainly to throw a bone to religious conservatives who, in the words of Ellen Willis “feel that their faith is trivialized and their true selves compromised by a society that will not give [their] religious imperatives special weight.”)

Given the structure of our government and our population, Constitutional amendments designed to enshrine controversial values are unlikely to get anywhere. Even if they do make it out of Congress and out to the states, the proper minority of state legislative votes will likely be incredibly difficult to assemble. As a result, a certain level of krytocracy (rule by the Judiciary) is likely to result. And it becomes the values and rights that a majority of those Justices believe in, and can plausibly justify within the structure of the Constitution, that become inoculated against the votes of the 99%.

Footnote — No, Simkin was NOT quoting Benjamin Franklin - there is no record of Franklin ever having said or written such a thing. Which makes sense. After all, Benjamin Franklin was supposed to be an intelligent and thoughtful person, and the version of the quote attributed to him: “Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote,” while it may be dear to libertarian gun-rights advocates, is merely a recipe for an anarchy in which any aggrieved minority takes up arms when it loses an electoral contest.