Proposition 8, liberalism and the limits of democracy
Posted Under: Civil Liberties,Democracy,Gay Rights,Human Rights,Minorities
This week’s overturning of Proposition 8 in California is obviously welcome news. Amending California’s state constitution to state that “only marriage between a man and a woman is valid or recognized in California” is nakedly discriminatory and Judge Vaughn Walker’s decision to strike it down should be applauded.
There is, though, something else that’s important to note about this case; it’s a clear example of a member of the judiciary overriding the democratically expressed will of the people. Proposition 8 was put to a referendum at the same time as the 2008 Presidential election, and 52% voted yes – a slim but clear majority. Judge Walker’s decision was unambiguously anti-democratic. Stopping same-sex couples from marrying is wrong for many reasons, but one area on which it certainly doesn’t impinge is democratic rights. And what this demonstrates, I suggest, is that the revolutionary left vision of a society run as democratically as possible might not be without serious drawbacks.
For a liberal, there are certain universal individual rights and liberties which merit legal protection regardless of what majority opinion might be. The right of two (or more, as I argue here) consenting adults to access all the legal benefits of marriage if they so choose is, in my opinion, worthy of this protection, so as a social (though definitely not an economic) liberal I’m entirely comfortable with Judge Walker’s decision. But for the revolutionary left, one of the many benefits which the overthrow of capitalism will bring is more democracy, and in particular more direct democracy, in as many areas of life as possible. Our present system of representative parliamentary democracy is argued to be little more than a sham; a tool to safeguard the interests of the rich and powerful – and the same (presumably) goes for undemocratic checks on legislative power like the judiciary. But given what’s happened with Prop 8, and with other cases where good reforms were passed in the teeth of popular opposition (Roy Jenkins’ abolition of capital punishment and his decriminalisation of abortion and male homosexual sex in the 1960s are often cited as examples), it seems hard to argue that public opinion always knows best.
I’m aware, of course, that the revolutionary left’s advocacy of more democracy doesn’t entail believing that democratic decisions are always right. A Marxist, might, for example, argue that people can act or vote in ways antithetical to their own interests or those of their class because the true nature of economic relations under capitalism is obscured, which leads to false consciousness, and that in a communist society this wouldn’t happen. But with social issues like tolerance towards sexual minorities it seems a little hard to argue that capitalism must necessarily foment bigotry, not least because it’s hard to see precisely how stirring up homophobia or racism benefits the ruling class in and of itself. Apart from anything else, one of the major arguments used by opponents of Prop 8 was that legalising same-sex marriages would bring money into California’s economy (see this video from 2:03 onwards, for example) – something you’d think the bourgeoisie would generally be in favour of. So, assuming we’re agreed that equal rights for sexual minorities are worth safeguarding regardless of what majority opinion might be on the matter, and assuming that homophobic attitudes can’t just be put down to the distorting effects of capitalism, it seems hard to escape the conclusion that those pesky liberal checks and balances on democracy are pretty important.
I’m aware that there’s a real danger that what I’m arguing here could come off as elitist. Maybe it is. But I’d rather live in an elitist liberal society where unpopular but harmless minorities are undemocratically protected from the tyranny of the majority than in a totally democratic commune with no safeguards against bigotry. Maybe that’s a false dichotomy, but like any other decision-making process, democracy is and will always be fallible. I’m aware that my knowledge of revolutionary socialist and anarchist theory is severely limited, and anyone who can explain why I’m wrong about this is more than welcome to do so. But unless and until that happens I’ll remain firmly of the belief that more democracy isn’t always something to be welcomed.
Reader Comments
Perhaps a solution, that would be palatable to the liberal, could be found by embracing a deliberative ideal, in which principles would need to be justified to those over whom they bind. After all, as Jeremy Waldron points out:
“If there is some individual to whom a justification can not be given, then so far as he is concerned the social order had better be replaced by some other arrangements, for the status quo has made no claim to his allegiance” (Waldron 1987, p.135)
According to this view, it is fine to hold a firm conviciton that homosexuals should not have the same rights in your private conscience, but, a higher degree of justification is required in order to coerce others. As Susan mendus argues; the point of the liberal argument “is not to pronounce on the legitimacy of persistent conviction, but rather to pronounce on the legitimacy of demands for political coercion based on the fact of persistent conviction” (Mendus 2002, pp.21-22).
I think that this argument has a lot of problems too, but I thinik that it allows us to hold that some versions of democracy are compatible with liberty.
I’m happy to explain why you’re wrong about this
The way the central question posed by this blog post is set up contains unrecognized liberal assumptions.
You contend that this is “a clear example of a member of the judiciary overriding the democratically expressed will of the people.” and because in this case, the “will of the people” was reactionary, “more democracy isn’t always something to be welcomed.”
Thus, to simplify, the liberal view that “there are certain universal individual rights and liberties which merit legal protection regardless of what majority opinion might be” yields the more progressive result in this instance than “the revolutionary left’s advocacy of more democracy”
So, the “liberal” limited democracy of rights is contrasted with the “revolutionary left’s” absolute democracy of the “tyranny of the majority.”
But there is a major flaw here, in that while there is an implied awareness that the legal “rights” guaranteed by liberal bourgeois states impose a baseline condition separate from “majority opinion” – the blog post adopts the *liberal* assumption that referendum voting is some sort of direct expression of popular will. In other words, the entire liberal limited democracy vs revolutionary left democracy comparison is based on liberal background assumptions of what processes and legal constructs are “democratic” and what are “anti-democratic.”
Any legal regime (even an anarchist adhocracy) whether it dictates judicial procedure or referendum voting, has certain “rules of recognition” (important jurisprudential concept to google if you’re not familiar with it). For something to be treated as a law requires those who act on it to apply certain rules of recognition determine when a result is a recognized as legally legitimate – similarly for something to be recognized as democratic requires the person granting such recognition (in this case you) to evaluate whether what happened conforms to rules you have (whether well articulated or vague) for recognizing something as democratic or not.
The baseline condition
Sorry, the above was not finished.
…
…The baseline conditions that shape the outcome of a referendum are treated as neutral or invisible in the post – and democratic will as unmediated.
In fact, the procedure for recognizing a legitimate expression of the popular will is just as artificially imposed on the people by the state, as the procedure for recognizing legally protected rights that – by virtue of the federal constitution – cannot be overridden by a California referendum.
Some of these background conditions should be obvious. The electoral laws stipulate that non-citizens and non-residents can’t vote, people under 18 can’t vote, convicted felons can’t vote, prisoners can’t vote, etc. So the determination of who gets included in the democracy is a first background condition that mediates a referendum as something other than a simple direct expression of the popular will.
The decision to make voting optional, rather than mandatory, means that it is an expression of people who have registered ahead of time, and then turned up at the polls, rather than an expression of everyone. The fact that it is conducted in a single day and popular opinion on that day of that limited population of people who chose to first register, then attend, has legal force that the same population’s feelings a day before or day after have no force – that is another legal construct that cannot be construed as a direct expression of democratic will. Yet another example is a choice to make each vote count equally – liberals assume that this is necessary for democracy, but one could just as easily imagine a system that counted votes by *intensity* of preference rather than simple preference (have people vote on a scale of 1 to 5 instead of ‘yes’ or ‘no’ – perhaps limit 1 and 5 votes or calculate a “local average” by the overall intensity of someone’s preferences thereby determining their electoral priorities between multiple issues – this is done in polling data and it could be done in election and referendums as well – the government just chooses not to organize referendums that way).
There are further layers as well. The background inequalities in access to the polls, access to broadcast and print media, access to places of public organization (e.g. churches, universities, community centers,), calling center and door to door canvasing capabilities – money to spend on these things – all represent different areas where the state’s decision to regulate – whether by act or omission – has a profound effect on the outcome of a referendum.
Allay your fears, comrade. Every overthrow of capitalism in history has led to a less democratic society governed by a more entrenched elite wedded to the use of brute force to retain its power. You can safely champion the goals of the revolutionary left with a clear conscience and sleep easy in your bed.
S Godwin: OK, so a referendum held according to the rules adopted by the state of California (or those of any other liberal state or government) aren’t necessarily a perfect reflection of the popular will, and shouldn’t be taken as such. Fair enough. But clearly no ballot can *ever* be a perfect reflection of the popular will, any more than there could ever be such a thing as the perfect free market so beloved of classical economists (the impossible demand that everyone involved must possess perfect information seems to be a difficulty that both share, interestingly). How would you change the rules adopted by the state of California to make the referendum more democratic? And do you really think that the only reason Prop 8 failed was because the referendum wasn’t democratic enough? Teenagers and convicted felons don’t strike me as being social groups which are more likely than average to be sympathetic to sexual minorities.