The Courts, DOMA, and Prop 8

Today the Supreme Court overruled DOMA, a federal law defining marriage as between one man and one woman. They refused to rule on Prop 8, a California State constitutional amendment that would have done something similar, and which was overruled by a lower federal judge.

For this post, I'm going to set aside the issues of whether homosexual relationships should be included in marriage, whether they should be normalized, and whether the government has the right to define marriage at all. Instead, I'd like to focus on the role of the courts in our American democratic republic--our country where the people rule, and they select representatives to do the day-to-day work of governance.

Our government is filled with checks and balances to keep these representatives from abusing their powers. It is commonly accepted that the Supreme Court has the final say on interpreting the Constitution. While the Constitution itself makes no reference to this power, generally called "judicial review," Alexander Hamilton is quoted as saying that their job is to interpret the law and reconcile any contradictions between laws, with the Constitution as the highest law of the land:

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.

If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

The Federalist #78

Note that Alexander Hamilton sees the Constitution as the ultimate representation of the will of the people. As long as we follow the Constitution, we're a democratic republic. That works fine for the court's overturning of DOMA, which was passed by Congress. I don't see the right to define family structure in Congress's list of powers, and I appreciate their allowing states to define marriage differently from each other.

The trouble is that the Supreme Court allowed a lower judge to overturn Prop 8, which was voted in not by the legislative branch of California, but by the voice of the people. It was a narrow majority, sure, but we now have a case where the courts have gone against the voice of the people in order to maintain their interpretation of the Constitution.

According to Alexander Hamilton, that defeats the whole goal of the system. I'm not saying it's good or bad--the courts could overrule a popular vote for good or for evil--but it is definitely undemocratic.

And I happen to like my democracy.