Democratic Limits?
Recently a controversial law was passed in Afghanistan that effectively legalizes a man's dominance over his wife. The law gives a man the right to force himself on his wife every 4 days and regulates when a woman can leave her home without a male escort. The law is widely viewed as a return to the Islamic fundamentalism imposed by the Taliban. Proponents argue that the law was drafted and passed through democratic processes and claim to have tens of thousands of female signatures in support of the law. Opponents say that the law was quickly passed without the document even being made available before the vote was taken.I obviously view this law as oppressive of women, but it does raise an interesting question about the implementation of a democracy. Assuming that the law was passed in accordance with all applicable legal processes (which I'm not claiming it was), should there be limits to the types of laws a legislative body can pass? I guess this is somewhat the function of a constitution. The Afghan constitution "calls for equal rights for all men and women. But the constitution also says that no law can contradict the laws of Islam" (http://www.foxnews.com/politics/first100days/2009/04/03/obama-administration-struggles-afghan-law-legalize-rape/).
One might argue that this is simply a conflict resulting from trying to mix church and state, but I don't think it's that simple for a couple of reasons:
1. All people subscribe to a certain ideology (tacit or otherwise), whether it is informed by religion, pop culture, or whatever.
2. Every law limits the behavior of someone (hopefully for the good of the whole)
In my view democracy is not perfect, but it's better than any other alternative this world has seen. Therefore even an oppressive law that was created democratically must be upheld. As awful as that sounds, the alternative is revolution to set up a dictator who agrees with your ideology or to eliminate enough of those who disagree with you to make them a minority.
Not that we should idly accept human rights violations, our tactics are simply limited to persuading others to our cause and fighting government corruption (as might be present in Afghanistan).
Long live the Goddess of Democracy!
Comments
Unfortunately, sometime the majority wants things that are substantively wrong. This happens when majority does not understand “correct” yet counter-intuitive policies. It also occurs when the majority does not respect the interests of the minority, as happened here. Substantive failures approved by a strong, lasting majority, are not a failure of democracy so much as an indictment of the majority in that particular democracy. In my opinion democracy fails, not when government implements a bad policy, but when a strong majority disapproves of a policy, and yet the government consistently implements the policy against the majority’s will. (Or maybe it’s not a failure of democracy so much as the end of democracy, and the formation of some other kind of government)
In terms of substance, what I (and I'm guessing you) would prefer is that Afghanis enacted laws that protect classically liberal civil right. In other words, Afghanis should have freedom of expression, and freedom to make choices about morality and economics, to the extent those choices don't directly harm others (which is a hard line to draw). What your post addresses is the idea that democracy and classic liberal rights should go hand in hand. But they don't necessarily have to. The person who brought this distinction to my attention, was Jonah Goldberg at NRO. He persuaded me that I’d rather live in a liberal society, without democracy, than in a democratic society without liberalism.
I think it takes a certain amount of pluralism and cultural tolerance for democracy to achieve liberalism. It doesn’t look like Afghanistan has much of either, but that’s not democracy’s fault.
--rdh
That brings me to your comment about the constitution which got my brain juices flowing about the role of the constitution.
You can break our constitutional provisions into two basic categories: procedures and rights. Most of the constitution deals with the procedures for electing government officials, and adopting laws. These provisions guarantee that power is distributed so that a minority cannot capture power or create law. A minority may dominate one branch of government, such as the presidency, but it is unlikely that it will dominate all three branches. Thus, separation of powers is a mechanism to ensure majority rule, and thwart the capture of power by a minority. These procedures also protect the minority to some extent by making it easier for the minority to block law. A dedicate minority may not be able to create law, but it will be easier for it to stop the majority from creating a law adverse to its interests.
Constitutional rights, on the other hand, are like Teresa says, there to protect the rights of the minority from domination by the majority. It seems to me our constitution specifically contains rights that are designed to protect open and healthy political debate necessary for a democracy. For instance, the constitution contains freedom of speech and freedom from certain types of government intimidation. These rights are constitutional floors that the majority can only change through a very difficult amendment process.
The two functions of the constitution—both to ensure majority rule, and to protect minority rights—creates an interesting tension for the Supreme Court as it interprets the constitution. When a law conflicts with a constitutional right, it’s the Supreme Court’s job it to tell the majority that passed the law to take a hike by invalidating the law. Likewise, when the majority adopts a law pursuant to constitutional procedure, and that law does not conflict with a constitutional right, it’s the Court’s job to defer to the majority’s constitutional power and give the law its effect, whether good or bad policy.
The proceeding paragraphs are the long way of setting up this one basic point: Isn’t it really sad and ironic how the liberal justices interpret constitutional rights that are meant to keep political majorities in check, by looking to the majority’s current opinion of what those rights should entail?
Take the case of Kennedy v. Louisiana as a prime example. You can read about the case here:
http://althouse.blogspot.com/2008/07/i-am-personally-opposed-to-death.html
The facts are as follows: Louisiana has a law that allows the death penalty for child rape. The Supreme Court decided that law was unconstitutional under the 8th Amendment which prohibits cruel and unusual punishment. The court determined that to figure out what constitutes cruel and unusual punishment the court must look to “evolving standards of decency.” In other words, the Court determines what constitutes cruel and unusual punishment by looking to what the majority of Americans think constitutes cruel and unusual punishment today. The court then looked around at state laws, and determined that, because most of those laws don’t allow capital punishment for child rape, the majority of Americans consider the death penalty for child rape to be cruel and unusual punishment. Thus, the court adopted the majority’s “standard of decency” as the constitutional standard. (Embarrassingly, the court overlooked a federal law that permitted the death penalty for child rape).
You could argue that in this case, the approach produced a larger right for the minority than an originalist approach would, so everything is ok for the minority. The problem with that argument is 1) the constitution also is designed to protect majority governance, which has been undermined, and 2) there is no guarantee that the majority will not change its mind, deciding no punishment is cruel or unusual, effectively gutting the constitutional protection.
So I agree with Theresa that constitutional rights are to protect the minority from the majority, although, unfortunately the liberals on the court are damaging these protections. (I also think she picks a very bad example to make this point, which I might address in another post. This post is way too long already.)
--rdh
The reason I don't think prop. 8 is a good example of your point that the constitution should be followed over democratically adopted law is because prop. 8 was a constitutional amendment. So following the constitution in this case produces the opposite result of the one that you imply the constitution should produce--namely following the constitution does not protect the gay rights as you seem to imply it would.
I don't think the federal equal protection clause protects those rights either. Equal protection is a term of art that on the federal level generally means that the government cannot single out protected protected classes for special treatment or burdens. Gays have never been recognized under the federal constitution as a protected class.(And for reasons explained above, I don't believe the meaning of the constitution changes, so they shouldn't be.)
Equal protection could mean something different in the California constitution, but probably not. Even if the California constitution did recognize gays as a protected class, it no longer does, at least for the purposes of marriage. Because prop. 8 is a more recent and more on point constitutional provision, it, governs over the equal protection clause.
--rdh
Even though prop 8 was a constitutional amendment, the law was still changed by democracy. I think it shows that you need a stronger constitution than one that can be amended by only a 50% majority, or else your constitution is pretty much useless. Of course it's considered an "addition" not an "amendment" which is why it was permissible, but if stripping rights from a minority is only considered an addition, what is really protected by the constitution?
-Theresa