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.