The End of Democracy?
nebraskalawprof at yahoo.com
Sat Oct 29 11:23:24 PDT 2005
Actually, my "end of democracy" reference relates to a First Things issue devoted to articles discussing how judicial activism by the Court was threatening the people's right to have most issues decided by democratically-elected state legislatures.
So the fact that a few states are legislating benefits for homosexual partnerships demonstrates democracy at work, not the end of democracy. I think these blue states are making terrible policy choices, but I don't believe they are a threat to democratic self-government.
If the marriage issue is to be constitutionalized, it should be done by amendment, not judicial ukase. I support the Federal Marriage Amendment, but I would not support the Court imposing the same provisions by judical decree. Amendments ought to come from the People, not the judiciary.
dpinello at jjay.cuny.edu wrote:
I agree with Mark Tushnet that the U.S. Supreme Court is unlikely to
address gay marriage head on for a long time. Moreover, I realize
that Rick Duncan's assertion that the Court's doing so might signal
the "end of democracy" for social conservatives was made in the
context of court action.
But how do hardline social conservatives explain away the facts that,
this year alone, the California Legislature passed a gay marriage
bill, the Massachusetts Legislature rejected a constitutional
amendment to reverse Goodridge, and the Connecticut Legislature
created full civil unions for lesbian and gay couples?
Are legislatures not democratic institutions? And don't these recent
legislative actions (not to mention the probability of future state-
house authorizations of same-sex unions by the time the Court acts)
seriously undermine the "end of democracy" argument?
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Welpton Professor of Law
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