The Will of the People

Brian Devine, at Prop8trialtracker

In 1803, the Supreme Court decided Marbury v. Madison. This case articulated the Judiciary’s power of “judicial review,” the power to decide the constitutionality of the actions of the other two branches of government (a law passed by the Legislative branch or an action by the Executive branch.) Ever since then, every citizen’s rights have been protected by the Court’s power of judicial review. The reason judicial review exists is to protect the rights of unpopular minorities against what Alexis de Tocqueville described as the “tyranny of the majority.” In our system of government, the majority does not get to take away rights that are protected by the Constitution from a minority group, no matter how unpopular that group is.

Using the power of judicial review, our Courts have decided several controversial issues and have forced the majority to accept ideas with which it vehemently disagrees. Ideas like school integration. In Brown v. Board of Education, the Supreme Court ruled that laws that created segregated schools violated the Equal Protection rights of racial minorities. Like Proposition 8, those laws were passed with a majority of people supporting them. And like Proposition 8, those laws were unconstitutional because they violated the rights of the minority.

Another idea popular among the majority was prohibiting inter-racial marriage. In the 1950′s and 1960s, most people believed that non-white people should be prohibited from marrying white people. Several states (including California) passed laws making interracial marriages illegal. These laws were very popular and passed with a majority of the people’s representatives. They were based on many of the same arguments on which Proposition 8 is based (fear of the slippery slope: absurd arguments like “if black people can marry white people, how long before people can marry dogs?”) But the laws were unconstitutional because they violated the rights of the minority. And in Loving v. Virginia, the Supreme Court declared unconstitutional all laws that prohibited inter-racial marriage.

Our history is rich with cases where the Courts have overturned the will of the majority and protected the rights of the minority. In Debra Saunders’ ideal world, however, these cases would not exist. In Debra Saunders’ world, Brown v. Board of Education would have been decided the other way, leaving the dreadful Plessy v. Ferguson decision to be the law of the land and permitting racial segregation. In Debra Saunders’ world, Loving v. Virginia would have been decided the other way, and states would be free to prohibit inter-racial marriages.