Do the Voters Get a Say in Fundamental Rights?

Reader Heidegger comments,

“The voters don’t get a say in it”. That’s just a stunning statement, coming from someone of your stature and someone who teaches Constitutional Law at a college level.*

Would he be shocked by Justice Alito saying it, in McDonald v. Chicago?

we have never held that a provision of the Bill of Rights applies to the States only if there is a “popular consensus” that the right is fundamental, and we see no basis for such a rule

Or Justice Robert Jackson, in West Virginia v. Barnette.

One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

The question, of course, is whether same-sex marriage is a fundamental right. As former Solicitor-General Ted Olson points out, the Supreme Court has repeatedly held that marriage is a fundamental right. Of course that doesn’t prove that “same-sex” marriage is equivalent to “marriage’ per se. Obviously many people think it is different enough to not qualify as marriage, and obviously I have a differing view.

But whether same-sex marriage is in fact a fundamental right, is not determined by a vote of the people–whether it’s a fundamental right determines whether the people get a vote on it.

And how have we in the U.S. always come to definitive conclusions about what is a fundamental right? The Supreme Court has made the determination.

Why can’t we allow the public as a whole to determine what is and is not a fundamental right? Because that would be putting fundamental rights up to a vote.

___________________________________
*To clarify the record, I only taught it once. I was a grad assistant for three Constitutional Law related courses, and it was a substantial portion of my major field exam. I introduced it as a course at my college because we lacked one, taught it once, then two years later hired an adjunct to teach it. To my relief, because I didn’t enjoy teaching it at all, our Criminal Justice department was offered an additional faculty member, and selected someone with an M.A. in philosophy and a J.D., whose primary interest is Constitutional Law. Last year we cross-listed the Con Law course between our two departments and added a cross-listed Civil Liberties course. There’s no doubt he’s a better teacher of it than I was, and I don’t have to spare so much attention to the subject anymore.

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About J@m3z Aitch

J@m3z Aitch is a two-bit college professor who'd rather be canoeing.
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17 Responses to Do the Voters Get a Say in Fundamental Rights?

  1. pinky says:

    .
    You are touching on the main reason the Founding Era generation voted to keep the law outside of the freedom to worship and association.
    .
    Thank goodness.
    .

  2. James K says:

    Yes, history has really shown just how intellectually impressive the Federalists (Madison in particular) really were.

  3. ppnl says:

    You often hear the argument from conservatives that we are not a democracy. We are a republic. That is a true and interesting distinction that often does not lead to where the conservative wants to go. It is enlightening to see them argue for the sanctity of the majority vote in those instances.

    Yes the federalists got a lot correct and much of what they got wrong was beyond their power to do anything about. They were impressive. I wonder if someone could found a modern party along those lines.

  4. James K says:

    ppnl:

    I wonder if someone could found a modern party along those lines.

    Yeah, like it would get any votes.

  5. Tim Kowal says:

    And how have we in the U.S. always come to definitive conclusions about what is a fundamental right? The Supreme Court has made the determination.

    I think this should be clarified a bit. Many fundamental rights are listed in the Constitution itself—e.g., freedom of speech, free exercise of religion, the right to keep and bear arms, etc. Of course, the Constitution does not use the word “fundamental rights.” But to strip credit from the people for affording constitutional protection to these rights and give it instead to the Court is quite a stretch.

    A tangentially related point: by letting the Court have some leeway in abstracting new rights out of the “principles” of the Constitution, we have also permitted the Court to undermine other rights expressly protected in the Constitution. The right to contract, for example. Better yet, the right to property is protected in not one but two amendments—the Fifth and Fourteenth—yet it receives only rational basis protection by the courts. How can it be that the Court has found new rights lurking in the “penumbra and emanations” of the text, yet it cannot see fit to do right by the rights expressed in the text itself? In my view, this is the result of the sort of high-level abstraction in constitutional jurisprudence that puts sociological and normative principles above interpretive principles.

  6. Heidegger says:

    Mr. Hanley, surely, I thought, pigs would fly past my window before anything I ever commented on would be a subject of one of your posts! So thanks, because I think “fundamental rights” is at the very heart of the issue, SSM, and will probably be the reason SCOTUS will not overturn Prop. 8. Marriage rights are neutral and apply to everyone equally–there is NO discrimination whatsoever in denying the right of two women or two men to get married when applied to the laws that presently exist because same sex marriage does not in any way fall under the definition of a “fundamental right”. Maybe in time, but what’s the rush? Do we really need to throw federalism under the bus because of one issue? “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” And there is absolutely no way the Supreme Court will override the inherent rights of States to exercise their 10th amendment rights in determining what constitutes the proper definition of marriage.

    James Hanley–I was just quickly browsing through comments and someone said you work for an Islamic think tank??? Goodness, do you mind if I refer to you as The Nutty Professor? I’m kidding, KIDDING! Probably, another James–somehow, you an Islamic think tanks don’t quite match. If I’m wrong, you bring a whole new meaning to the words intellectual diversity.

    ppnl–sorry for not getting back, but many thanks for the Global Warming replies. Hey, why would global warming cause oceans to rise?—I remember being introduced in 4th grade science class to Archimedes buoyancy principle–“Any floating object displaces its own weight of fluid”. Try it yourself–put an ice cube into a glass of water and watch it melt–the water level never changes.

  7. ppnl says:

    Heidegger,

    ppnl–sorry for not getting back, but many thanks for the Global Warming replies. Hey, why would global warming cause oceans to rise?—I remember being introduced in 4th grade science class to Archimedes buoyancy principle–”Any floating object displaces its own weight of fluid”. Try it yourself–put an ice cube into a glass of water and watch it melt–the water level never changes.

    It’s true that the melting of floating ice cannot cause the sea level to rise. But there is a substantial amount of ice supported by land. The Greenland ice cap is melting at a rate of about 50 cubic miles per year for example. If the whole Greenland ice cap melted it would raise sea levels more than 20 ft.

    But most of the sea level change we see so far isn’t caused by melting ice at all. It is caused by the thermal expansion of of water as the ocean heats up.

  8. Michael Enquist says:

    James K,

    Thank you. You’ve made the point quite well that we don’t keep truning back to the words of these chaps as if they were holy writ or something, it’s because they argued very, very well for what they believed.

    When someone more recent writes well about the need to protect individual liberty, we cite them ALSO.

  9. Heidegger says:

    Well, ppnl, you’ve done it again! I’ve asked that question several times this week, to people you would normally think would know the reason why and why not Archimedes Principle would apply, and not one of them got it right. The most common reply was ice melting from mountain tops is what would cause sea levels to rise. Would that even be possible? I figured evaporation would take care of any melting mountain snow. All things being equal, (I know you would not agree to the “equal” part) do you think the climate change debate is to a large extent ,one of those temperamentally driven subjects that the twain shall never meet? Big government believers vs. man controlling his own destiny deniers?

  10. Michael Enquist says:

    Heidegger should have attended 5th and subsequent grades as well.

  11. Michael Enquist says:

    Speaking for myself, I would agree with this one statement by Heidegger: “the climate change debate is to a large extent, one of those temperamentally driven subjects that the twain shall never meet”

    But not his characterization of the “twain” as “Big government believers vs. man controlling his own destiny deniers…”

    I was watching a video on TED.com yesterday showing the amazing biodiversity around deep sea hydrothermal vents – a place where we 1 atm pressure, 20C temp, land-dwellers would consider it impossible to live. The oceanographer showing the video even quipped, “You’ve got these little chimneys, sitting here, smoking away ~ this stuff is toxic as hell, by the way, you could never get a permit to dump this in the ocean ~ and it’s coming out all around [the earth]. It’s basically sulfuric acid […] and animals are thriving in it […] and we probably came from there.” The existence of extremophiles is evidence to me that life on Earth is pretty durable. Human life is another matter, and for some reason, we humans are a bit species-centric about our own continued existence.

    The two major sides in the non-scientific part of the discussion – the “twain,” if you will – are folks who want to apply the precautionary principle to protecting the human biosphere, and folks who want to apply the precautionary principle to protecting the human econosphere.

    “Scratch an environmentalist and probably you’ll find a Malthusian,” says Iain Boal. I agree. But those who reject the suggested restraints on resource extraction and economic activity proposed by the AGW crowd tend to throw the baby out with the bathwater and reject the entire notion of AGW itself. This is a big mistake, because the science that leads to the conclusion that human burning of fossil fuels and consumption of timber is causing an increase in CO2 levels, thereby heating the climate of Earth, is as good as any science people have ever done. (Michael Heath has posted citations aplenty in the previous parts of this discussion. I refer the reader to his posts.)

    Those of us who want to protect individual liberty need to show that we can expand economic prosperity by providing market solutions to environmental problems. And the only way we can show is by doing, because we’ll never win the argument in the political realm.

  12. Matty says:

    Big government believers vs. man controlling his own destiny deniers?

    This is actually an example of a common mistake in debates of all kinds, assuming that because a policy would have an effect (e.g big government) then those who advocate it must be doing so because they want that effect. This ignores the fact that any policy will have several effects and the only way to find out which one(s) advocates actually want is to ask them. In the case of AGW I can think of plenty of people who argue for emissions control because they believe it would result in a better environment to live in but none who argue for emissions controls because it would increase the size of government.

    This is not to say that the propsed controls would improve the situation or would not increase government (I will leave those arguments well alone for now) but it is poor form to assume your opponents are not motivated by what they say motivates them but instead by what they dismiss as a side effect or ignore completely.

  13. Michael Enquist says:

    On the one hand, I agree with Matty’s admonishment above. But it seems that attributing a particular POV to one’s opponents that they do not hold is the main method of argumentation used not only in the blogosphere, but in the MSM and real-life politics.

    On the other hand, if you demonstrate that X is a necessary consequence of arguing for Y, and your opponent continues to argue for Y, couldn’t you then honestly claim that your opponent really wants consequence X?

  14. buddyglass says:

    Some thoughts on what the “majority” really wants, on a national scale:

    http://www.facebook.com/#!/note.php?note_id=154508224573665

    (Forgive the medium.)

    Claims based on data from pollingreport.com.

  15. James Hanley says:

    Heidegger,

    I do not “work for” an “Islamic think tank,” but I am fellow with the Institute for Social Policy and Understanding, which is a predominantly Muslim think tank. When I, along with several others from the organization had a meeting at the state department, our joke was that I was the “token white guy.” Then my friend Muqtedar pointed out that he and I were the only 2 of the me who had beards, so he suggested I was actually a better Muslim than the others.

    Re: Mountain ice/snowmelt evaporating before it reaches the ocean. There are any number of mountain streams that reach the ocean, and the cooler the region–i.e., areas where glaciers are most likely–the less the evaporation, all other things being equal, because cold air can hold less moisture than warm air. So if the ice covering Greenland melts, most of that water will reach the ocean. If the ice covering Antarctica melted, most of that water would reach the ocean.

    I have no comment, though, on how much melting and ocean-level rise is likely.

  16. ppnl says:

    I figured evaporation would take care of any melting mountain snow.

    Uh, what? Evaporating water does not just disappear. Its atmospheric residence time is measured in days. It will rain somewhere and the sea level will rise. If it didn’t then the greenhouse effect from all that vapor would really be bad. Besides that massive amounts of the water from Greenland makes its way into the ocean as ice rather than water or vapor. Tens of thousands of icebergs calve off every year. Its just that currently thermal expansion is the dominant mechanism of sea level rise. As the melting continues that will change.

    All things being equal, (I know you would not agree to the “equal” part) do you think the climate change debate is to a large extent ,one of those temperamentally driven subjects that the twain shall never meet? Big government believers vs. man controlling his own destiny deniers?

    You want to see big government? If we see major ecological collapse we will see people demanding that government take their rights away. We will see law changes that make the patriot act look like a constitutional love in.

    In the short term fighting global warming requires very little in the way of big government. Streamlining the licensing of nuke plants is actually smaller government. The yearly cost will be far less than what Iraq costs and mostly supplied by private enterprise. Forget about the politicians posturing for short term advantage and just work the damned problem.

  17. James K says:

    When you consider that Adam Smith and David Hume and Voltaire and many others were all writing t about this time, it seems clear to me that something very unusual was taking place in the last 18th Century. Now, if only we could work out how to replicate it …

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