When Chris Christie last week threatened to veto (and then did) the same-sex marriage bill passed by the New Jersey state legislature, saying it should be put to a vote of New Jersey residents, Gov. Christie perhaps thought he would look like the ultimate democrat (with a small “d”) to independents and perhaps even some liberals. And many conservatives, no doubt, thought that they could defeat same-sex marriage at the ballot box when they couldn’t win in Trenton, either the New Jersey legislature or in the New Jersey Supreme Court.
But the issue of who should make the decision in New Jersey about same-sex marriage is not merely about strategies and tactics by each side figuring out where it has the best chance to prevail. The reason why same-sex marriage rights may need to be gained in some places—perhaps everywhere—by a vote of the U.S. Supreme Court, and certainly preserved by the U.S. Supreme Court when granted, is that the U.S. Constitution was designed so that constitutional rights would not be put up to votes of the general public. Instead, fundamental rights were granted by the U.S. Constitution, and the individual state constitutions, and at least the U.S. Constitution was designed to be very difficult to amend. And what the various constitutions meant, when there was a dispute, always has been ultimately up to courts, not Congress, not legislatures, and not votes of the general public. Moreover, the best thinking is that judges should be thoroughly vetted and appointed, not elected, although they are still elected in many states.
It is particularly ironic that many Americans complain about so-called “activist judges,” especially when those judges explicitly affirm constitutional rights. The U.S. Supreme Court has been reviewing acts of Congress for constitutionality since Marbury v. Madison in 1803. If that is judicial activism, judges have been “active” for more than 200 years, not only since some mythical starting point during the New Deal or while the Republican Earl Warren was chief justice.
The Founding Fathers didn’t get everything right (note African Americans originally each being counted as 3/5 of a citizen, black men not obtaining the federal right to vote until 1870 [15th Amendment], and no women having a federal right to vote until 1920). But the Founding Fathers understood the problem of the “tyranny of the majority”—the likelihood of most citizens being so uninformed about constitutional law, so uninformed on relevant facts, and/or flat-out irrational that they might vote not only in favor of silly statutes or unfair taxes or appalling political candidates, but that they would support basic constitutional rights being denied their fellow citizens. (Protecting against the tyranny of the majority was the reason behind all of the checks and balances: veto power, staggered election terms, differences between the U.S. House and U.S. Senate, even designing a representative—not direct—democracy in the first place.) Whatever one thinks about a particular judge, or judges generally, they know more about constitutional law than the average voter, or the average politician, and what judges don’t know, they find out before making decisions. They also are sworn to uphold constitutional rights—it’s in their job description—which certainly is not true for the average voter.
One doesn’t even have to get into issues in which some claim that multiple constitutional rights conflict (such as abortion rights) to see lack of support of, or at least widespread apathy about, fellow citizens’ constitutional rights. Try engaging most Americans in any conversation about jail and prison conditions (8th Amendment warning!) or the military’s treatment of the news media (1st Amendment alert!) anywhere near a war zone, and they either categorically support whatever the government is doing (or not doing, as the case may be), or don’t care.
In fact, polls about knowledge of and opinions about basic constitutional rights are appalling and could make one wonder about the wisdom (if it weren’t for the necessity) of putting anything up to a vote of the general public. For instance, in the First Amendment Center’s national poll in July 2011, 38% of Americans did NOT know that freedom of speech is protected by the First Amendment, 25% of Americans think it is NOT important for news media to monitor government (and only 54% of Americans agree strongly that news media should be government watchdogs). Eighty-one percent of Americans did not know the First Amendment protects freedom of religion, 83% did not know the First Amendment protects freedom of the press, and 86% did not know the First Amendment protects freedom of assembly. Surprisingly, this is after the U.S. public’s support of certain media rights and privileges, such as being able to keep sources confidential, has gone up!
One role and goal of the American Civil Liberties Union is to try to educate Americans about their constitutional rights (education that they apparently are not getting at home or in school), but—as one can tell—it is an uphill battle.
Finally, problems with putting constitutional rights up for a public vote are not new. In 1915, for example, New Jersey put a woman’s right to vote on the ballot, and it failed. Only four years later, Congress passed the 19th Amendment. By the next year, 1920, that amendment had been ratified by enough state legislatures to pass, including New Jersey’s.
These are not mere complaints, but facts that cannot be wished away, and—given the connection between lack of knowledge of constitutional rights and lack of support for them—proof that our fellow citizen’s ignorance has consequences for the rest of us. Granted, judges are not all-knowing, wise Renaissance persons, and they also make mistakes, but as a people we have, by design, put trust into judges, rather than the guy next door, to protect our constitutional rights. And, over the long run, it was the right decision.
Indeed, the New Jersey Supreme Court already ruled (Lewis v. Harris, 2006) that the New Jersey Legislature must provide marriage-like rights to same-sex couples. The New Jersey Legislature has now voted to provide not only “marriage-like” rights to same-sex couples, but to provide marriage itself to same-sex couples. (A vote of New Jersey citizens might even agree, if it were a good idea to put individuals’ constitutional rights on election ballots.) It is Governor Christie, a Republican trying to look democratic, who is out of line here, not the New Jersey Supreme Court and not the New Jersey Legislature.