Port: As frustrating as it is, we still need the consent of the governed
There is hubris in the belief that judicial edicts settle contentious political questions.
MINOT, N.D. — The American form of government is founded upon a singular and simple concept: Political power derives its legitimacy from the people.
It's right there in the Declaration of Independence. "Governments are instituted among Men, deriving their just powers from the consent of the governed," Mr. Jefferson wrote, though as is often noted, it was a flawed concept as applied by America's founders.
The only people who could participate meaningfully in governance back then were propertied white men.
But our nation's failure to live up to its aspirations is no indictment of the concept, flawed as it is. And it is flawed beyond its uneven application by the founders. After all, we could point to many historical examples when the governed consented to some astoundingly awful things. Support for slavery was the majority point of view in many parts of America for a long time. Many German citizens acquiesced to the rise of Nazism.
Still, what's the alternative? Autocrats? The divine rights of monarchs? Appointed-for-life judges imposing their will on society?
That last is the crux of the current debate.
I bring this up in the context of a column I wrote yesterday about the Respect for Marriage Act, arguing that legislative progress on controversial social issues — bipartisan progress, no less — is preferable to judicial fiat.
"Like it or not, the Respect for Marriage Act is how the law is supposed to be made in America," was my headline, and it's earned me no small amount of rebuke from those who support the right to an abortion that was manufactured by the courts in Roe v. Wade, or the right to same-sex marriage that was crafted by Obergefell v. Hodges.
Some of the feedback I received was less than constructive, but it has led to some good conversations, including one on Twitter with Zach Raknerud, the Democratic-NPL candidate for U.S. House in 2020.
The lawmaking process being as slow/unreactive as it is paints the exact picture of why balances of power are necessary. When Congress doesn't act on rights afforded by the Constitution, the judicial branch can step in as they have.— Zach Rak (@ZakRak4) December 8, 2022
I'd say that's exactly how it should work.
The rebuttals to my argument can largely be summed up by this point: Why should just social outcomes have to wait on the voters and their elected representatives? It's cruel to deny women access to abortions or same-sex or interracial couples access to marriage, so why shouldn't the courts cut through the miasmas of politics and deliver justice?
And my answer, as unsatisfying as it is, is that we need the consent of the governed.
First, and foremost, that consent is a requirement for any action by the government to be legitimate. Our liberal friends aren't keen on the concept of originalism in jurisprudence, but at its simplest, it's merely the belief that we ought to be governed by the law as written. And if we don't like the existing law, it should be changed in legislatures or at the ballot box, and not in a courtroom.
If you believe a right to abortion should exist, for example, then get busy and amend the constitution.
"But that's hard and takes a long time," you might say.
That brings me to the second point, which is that building consensus matters. There is hubris in the belief that judicial edicts settle contentious political questions. As if we can make the law first and expect people to change their cultures and attitudes later.
That certainly didn't happen with abortion. In 1973 the Supreme Court created a right to an abortion, driving the issue to become one of the most acrimonious and divisive ( and sometimes bloody ) issues in the American political arena. When Roe was decided, about half of the American states hadn't consented to legal abortion. The political majorities in those states felt trampled on. They became the constituency for a pro-life movement that spent decades chipping away at Roe through legislative action and litigation, and judicial appointments until it was finally overturned.
Had the Roe decision not created that movement, the abortion discussion today would probably be about the dwindling number of states that still ban the practice.
And now we arrive at my last point, which is that when the public consents to a law, as opposed to courts creating a law and expecting the public to consent afterward, that law is far more durable.
Again, using abortion as our example, the Roe precedent was the law of the land for 49 years, 5 months, and 2 days. Then the Supreme Court acted again and wiped its previous decision away, as though it never really existed in the first place.
But what if the pro-choice movement, instead of hanging their hats on court rulings, had instead engaged in a meaningful campaign to persuade voters and change laws, up to and including, perhaps, the U.S. Constitution?
When you succeed through that process, it means you've won over a critical mass of the public to your way of thinking. Which is important not just for the endurance of policy reforms but for the sake of our society.
Which is the point of democracy, isn't it? What else is it other than a process through which we intend to govern ourselves without killing each other?
From the culture wars to partisan politics, we are a divided people. And while there are a number of things we can blame that on, how can we ignore the number of people — including those who think courts ought just to impose their preferred policy outcomes on society — who have lost sight of the importance of consent?
Why bother winning over voters when a court can just issue an opinion, or a president can just issue an order?
While the founders of the American public were skeptical of the supposed "wisdom of the masses," and built into our form of government many mechanisms to act as a check on unfettered majoritarianism (they were right, "vox populi, vox dei" is a deeply suspect concept), they also understood that legitimate government ultimately has to account for the will of the people.
The consent of the governed.
Without it, the American experiment in self-governance is for naught.