Flashback: Prop 8, Gay Marriage, Progressives and the Limits of Democracy

I should have reposted this article a while back during the Kavanaugh hearings when the Supreme Court was in news, because I think this old article that was written before gay marriage was legalized on the national level and discusses the weird contradiction between the Left's love of democracy and how their biggest victories tend to come in antidemocratic ways.

​We’ve written before in favor of gay marriage, so I guess I’m happy to see Prop 8 overturned by a federal judge. Unfortunately, we’ve also written in favor of federalism and I see nothing in the Constitution pertaining to marriage either way. Regardless, I find the progressive “victory” yesterday somewhat ironic.
The reason I find it ironic is because although gay marriage is a cause célèbre for progressives, assuming the federal ruling holds up, the progressive “victory” was won in a completely undemocratic way. Indeed, 52% of California voters voted in favor of the bill, not a strong majority, but a majority nonetheless. This throws a wrench into the ‘everything goes if it happens democratically’ mantra that Democrats seem to hold now that Obama is in office. Nancy Pelosi even had the gall to ask if a man was joking when he asked her where in the Constitution it said that the federal government could mandate people to buy health insurance!

So the rule of law is irrelevant when it comes to healthcare reform, but it’s all well and good with regards to gay marriage? Indeed, leaving aside the issue of states’ rights and the balance of power between the federal government and state governments, the issue of gay marriage is really something that should not be voted on anyways (marriage is a contract, it should be protected by the government, not licensed by the government).

But yet the left goes on and on about democracy. Everything should be voted on. Noam Chomsky discusses how if we had a functioning democracy everything would be dandy and Michael Moore, in his movie decrying the evils of capitalism, calls for nothing other than pure 100% democracy. Every decision, from politics, to the workplace to everything in between should be made democratically. Barack Obama, as well as Bush and every other politician, celebrate democracy at every chance they get (even while undermining it). But here we have a case where the left wins a victory by going around democracy. What do we make of this?

Democracy may be good, but I would argue that it is good only to a limited extent. There are certain rights we shouldn’t be able to vote away from each other, for example the freedom of speech. We should also remember that Hitler came to power in a democracy, ancient Athens built an empire under a form of direct democracy, George Bush was re-elected in 2004 and Saddam Hussein got 100% of the popular vote (OK that one’s not really fair). Detractors will surely say that democracy isn’t perfect but it is still good, as Winston Churchill said “democracy is the absolute worst type of government, aside by every other one.”
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Sure, but democracy needs limits. Namely it needs a constitution (rule of law) based on natural rights (your right to swing your fist ends where my nose begins), separation of powers to limit collusion and a functioning version of federalism to prevent a monopoly of interpretation on said constitution. I personally think the United States is doing pretty bad in all four departments, but that’s for another article. Our discussion here involves democracy. And unbridled democracy alone is simply mob rule, the power of the 51% to take away the rights of the 49%. It’s what Thomas Jefferson referred to as “two wolves and a lamb voting on what’s for dinner” while liberty was “a well armed lamb protesting the vote.” James Madison was more explicit:

“The prescriptions in favor of liberty, ought to be levelled against the quarter where the greatest danger lies, namely, that which possesses the highest prerogative of power: But this [is] not found in either the executive or legislative departments of government, but in the body of the people, operating by the majority against the minority.”

Indeed, the Founders, other than Thomas Paine, were not big fans of democracy. That’s why the United States was actually set up as a constitutional republic. Now, democracy certainly has its place. But on major decisions—such as going to war—something much closer to unanimity should be required. As a matter of efficiency, day in and day out decisions should not be made in an ad populum sort of way. The people with the most expertise and the most at stake should typically make such decisions. And for issues such as gay marriage, issues involving private arrangements that don’t affect anyone else,  the government has no place there regardless of whether we’ve voted on it or not.