The best reason to vote for Bush
I was talking to my old man about this yesterday and I had never thought about it in quite this way. He said that the best reason to vote for Bush, especially for someone with libertarian leanings, is that Bush gets to appoint judges. In his view, any Bush appointees will be a lot more likely to leave the big social questions to the ballot, rather than deciding for us in the courts. I think that’s the most compelling argument I’ve heard so far.
“Dan, I’m curious to know which rights we’d lose if put to a popular vote. Obviously our elected representatives have curtailed our gun rights, but is anyone lobbying to ditch habeas corpus?”
Were you born upside-down? You forget how easily the masses are led, especially in the post 9/11 days. Personal freedoms as well as privacy issues come to mind as the most easily threatened by popular rulership. Any fear-mongering demagogue worth his salt could persuade the general public to trade freedoms for an illusion of safety. In fact, if you look at history the more issues put to popular vote in a democracy the worse it gets. Look at Athens, the shining example of direct rule by the majority, they were led like sheep to the slaughter, and they were infinitely more civic minded and politically attentive than the average American is today.
The other point you fail to miss is the total lack of research and information gathering about a subject that the masses undertake. They’ve got shit to do, they don’t have time to pour over the pages of documents necessary to make an informed decision about anything more complicated than gay marriage. (And even then they manage to bungle it, (ex. the new Missouri Constitutional Amendment) but that’s a whole other argument that I’ll leave for another day.) You’ve seen the havoc they wreak on budget votes and the like, why in god’s name would you trust them with something as precious as your rights?
WWB:
1. You said:As I understand it, by the time of the civil rights movement, everyone knew the Jim Crow laws were unjust; when law came down there was never a serious move to overturn it. Today there is no such consensus about gay marriage and late-term abortion.Wow. I don’t know what history book told you that the repudiation of the Jim Crow laws was greeted in the south by humbled, yet amiably civic-minded acceptance. Didn’t quite go down that way; a great many majority votes in Southern legislatures would have likely denied rights to blacks for decades had it not been for that pesky Supremacy clause.
In fact, there is a credible historical argument to be made that the 1950’s-60’s civil rights movement (which, to hammer the point, was not universally agreed upon in, say, Alabama) would not have moved with the same momentum and energy were it not kickstarted by Brown v. Board of Education. That decision opened the floodgates, rather than being a response to popular consensus.
2. What do I mean by rights? Constitutionally enumerated rights, including those inalienable natural rights to privacy and self-determination not mentioned but implied by the 9th Amendment. The Constitution, particularly since the Reconstruction, is pervaded by fear that both Congress and the states might see fit to act, by legislative majority vote, to curtail individual rights:
Congress shall make no law…
No state shall make or enforce any law…
3. Regarding federal courts. Probably because this started out being about federal appointments, you’ve construed me to want “federal courts” to sort out disputes over rights. Not necessarily so. On the gay marriage issue, at least, I expect the majority of court battles will shake out in state courts. Why? The federal privileges & immunities clause was long ago rendered meaningless by a very dumb Supreme Court decision, so any legal argument worth its salt will be advanced on state constitutional grounds, and state courts will have the final word if no federal issue is presented. State courts will thereby play a vital role in the process of federal experimentation. Why do you think this whole thing started in Massachusetts, Portland and San Francisco, and not Iowa? Federalism is alive and popping.
Other issues:
-Abortion of any kind: I’m sympathetic in principle to Roe v. Wade, yet also sympathetic to the idea that it was a terrible judicial move. It’s poorly reasoned, unrestrained, and it turned a process of bubbling federal experimentation into a national, highly polarized screaming match. Yes, I’ll acknowledge, federal courts can fuck up. But so can legislatures.
-Drug legalization & assisted suicide: These are issues where the federal courts have and continue to actually protect federalist experimentation from the Department of Justice. No court decision is going to force the entire nation to smoke dope and kill ourselves, but plenty have told the federal government to butt out and let states figure these rights out for themselves. Damn those federal judges!
Dan, I’m curious to know which rights we’d lose if put to a popular vote. Obviously our elected representatives have curtailed our gun rights, but is anyone lobbying to ditch habeas corpus?
Meanwhile I reiterate: the debate over what is accepted as “a right” continues. I should brush up on my philosophy before launching into a tirade, but it seems our political culture has devalued what constitutes “a right” (see: the “Patient’s Bill of Rights).
As I understand it, by the time of the civil rights movement, everyone knew the Jim Crow laws were unjust; when law came down there was never a serious move to overturn it. Today there is no such consensus about gay marriage and late-term abortion. Nor drug legalization, assisted suicide or a raft of issues. Perhaps if the courts recognized a right to cheap liquor I could change my mind…
And it’s not that you knocked federalism, just that you seem content to let federal courts sort out disputes over rights. Aren’t these disputes what federalism is supposed to work out?
To make the classically libertarian argument: why not take the State out of the marriage business altogether?
WWB, when did I say anything against federalism? Federalism rocks.
My point is this: majorities do not always do the right thing, and unchecked, they can do terrible things to minorities. By minority, I’m talking here about “smaller groups,” not simply racial/ethnic whatever. Our constitution — our entire federal system — was conceived in part to protect minority interests from domination by the majority.
Personally, I believe in a whole host of freedoms that would likely get crushed if put to a majority vote. This is why we wrote down some of them from the start, and have added a few to the list, and provided, as part of our governing system, an (ideally) extra-political justice system that (ideally) would settle issues concerning those basic freedoms on first principles.
While representative democracy is a great thing for settling the bulk of social issues (I agree with you about ballot measures), there are some basic rights too inalienable to leave to the shifting whims of the majority. That is a fundamental principle of the American constitutional system, like it or not. So, for instance, however much you’d like to see gay marriage settled by legislatures, denying it would prima facie violate the equal protection clause. (I’m not going to get into the precedents.) Some things are simply beyond the vote.
I’m sure I needn’t remind anyone that it was the Gore campaign who wanted to alter the ballot-counting procedure used in Florida to make sure that “every vote was counted” and thusly caused the whole legal snafu.
Rob, that’s not the matter at hand. Besides, the Gore campaign filed in court first; otherwise it would have gone into the House as per the Constitution. If you want real hypocrisy, watch how the Kerry campaign is overdoing its selective outrage about the Republican 527s, when the Democrats have cornered the market in 527 organizations.
Danimal, in general I trust popular, i.e. voted laws more than I trust the a few judges, i.e. the law students you have to put up with grown long in the tooth. Plus there’s the notion of federalism, and I’d also prefer states could be allowed to experiment with different laws — competition is good!
Flood, we mostly agree. I tend to think social issues such as gay marriage and abortion should be handled by state legislatures first and the ballot measure second. The ballot is handy, but it’s more a whip than a brush. But maybe I’ve read in a bit too much.
Honestly, I’d rather not have my liberties determined by majority vote. That’s kinda why we drew up a Constitution in the first place.
Like the presidental election? Decided by the courts, not by popular vote. They’ll let social issues they don’t agree with be decided by the ballot box. Until they disagree.