Decide which you favor: The Constitution, or tyranny of the majority.

David Benkof writes:

The problem is, the current political situation gives segregation proponents no choice other than what our president calls “the Constitutional process.” Believe me, right-of-center politicians (and especially the White House) haven’t been eager to deal with segregation at all. But blacks sued in court, won in Massachusetts, and now the only way those of us who want to preserve racial segregation can do anything politically is to amend a constitution – the Massachusetts one or the federal one.

Actually, that’s not what David Benkof wrote – he was writing about gay marriage, not segregation. But I thought switching the words would add a bit of perspective. He’s saying that if courts find that lesbians and gays are entitled to equal protection of the law, it is reasonable to respond by changing the constitution.

It comes down to whether you think constitutional rights are important in all circumstances, or only important in those circumstances in which you approve of the outcome. If you believe in the 14th amendment, providing equal protection of the law to all citizens, then you must believe that the 14th amendment is still valid even when it leads to an outcome you disagree with, or that the majority of voters disagree with.

David’s position is that the 14th Amendment (and the Massachusetts equivalent) is invalid if it leads to a court decision that he doesn’t like, or that the majority wouldn’t vote for. That’s no different from saying that there shouldn’t be a 14th Amendment at all.

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9 Responses to Decide which you favor: The Constitution, or tyranny of the majority.

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  3. 1
    Ampersand says:

    Mark S. wrote: Benkof didn’t suggest that people go out and lynch gays, or that states pass a whole heap of Jim Crow-style miscegenation laws…

    I didn’t accuse him of any of these things, Mark. Nor, by the way, were the folks favoring segregation in Brown v Board of Ed advocating lynchings. They were advocating a much more mild form of discrimination; “separate but equal” schools.

    I actually do think that banning lesbians and gays from marriage is about equal in seriousness to segregated schools. Neither is as awful as lynching, but both of them are appalling acts of discrimination.

    Mark: He wants the 14th Amendment amended.

    But I doubt he’d admit that’s what he’s advocating. As far as I can tell, SSM opponants want it both ways – they want to oppose the 14th amendment, but they don’t want to take the political heat that they’d get if they openly admitted they’re against equal protection guarantees.

    Furthermore – and this is the point my transposition of langauge was intended to make – merely because altering the constitution may be the only way to fight back after losing a 14th amendment case, doesn’t establsih that the proposed constitutional amendment is reasonable or moral.

    [Edited because my first version had totally screwed up sentence structure, turning much of the comment into word soup.]

  4. 2
    Camryl says:

    “David’s position is that the 14th Amendment (and the Massachusetts equivalent) is invalid if it leads to a court decision that he doesn’t like, or that the majority wouldn’t vote for.”

    I think his position is actually that the *court’s interpretation* is invalid if it claims that SSM is permitted by the 14th Amendment.

    At least some anti-SSM people really can’t see it as an equal protection issue, and wouldn’t even if the judicial branch *and* the majority of voters agreed that it was.

    After all, no one would complain that firing an employee who’s been caught stealing is a violation of equal protection. Not to imply that all anti-SSM’ers think homosexuality is directly immoral, but they do believe that SSM will have a deleterious effect on society as a whole. And I assume they (like I) never interpreted the 14th Amendment as an open loophole to remove societal restrictions on behavior that causes actual harm. (N.B. I support SSM.)

    So the goal of a “Marriage Equals One Innie and One Outie” amendment is not to deny the 14th Amendment (as the anti-SSM’ers understand it) but rather to enforce a certain interpretation of it. (And of the societal effects of supporting long-term homosexual bonding.)

  5. 3
    Dan J says:

    No one has suggested that the 14th amendment is an open loophole to prevent restrictions on anyone’s behavior if it actually did cause harm, including, as far as I can tell, the courts. But those opposed to equal rights for all have failed to present any sort of direct causal link between gay marriage and all of the things that they think might maybe perhaps happen to society (bad grammar artfully used, I hope, to point out just how completely imaginary the perceived problem is).

    The net result of passing an amendment that contradicts the equal protection amendment in this way will be to render homosexuals legally sub-human in a sense, which I think most anti-SSM people are fine with.

  6. 4
    Mark S. says:

    This is just the tiniest bit insulting, I have to say. Benkof didn’t suggest that people go out and lynch gays, or that states pass a whole heap of Jim Crow-style miscegenation laws to make sure same-sex couples were prevented from enjoying the benefits of their 14th Amendment protections. He wants the 14th Amendment amended. It has happened before, it is an entirely appropriate response to a judicial setback, and it is completely worthy of one’s respect.

    It is also completely worthy of expending every fiber in one’s being to see it defeated. These are not incompatible impulses.

  7. 5
    Hestia says:

    Correct me if I’m wrong, but I think Ampersand’s point is that Benkof’s reasons for ignoring the 14th amendment are entirely subjective and, in this case, unreasonable.

    I don’t see anywhere in the post where Ampersand suggests that Benkof wants to lynch gays. I’m not sure how you came up with that interpretation.

  8. 6
    Amy Phillips says:

    Amp: Just out of curiosity, does your view of the Constitution as valid even when it produces an outcome you dislike apply to the 2nd Amendment? How about the 9th and 10th Amendments? The Commerce Clause? I’d love to see the Constitution followed all the time, even when people dislike the outcome, but I don’t think that’s really what you’re asking for here. I think you’re asking for it in this case, regarding the 14th Amendment, because *you* like the outcome. But I hope I’ve underestimated you.

  9. 7
    Ampersand says:

    Amy wrote: Just out of curiosity, does your view of the Constitution as valid even when it produces an outcome you dislike apply to the 2nd Amendment?

    Yup. I think guns are stupid, but I also think (contrary to what a lot of my friends think) that the 2nd amendment does, pretty much, guarantee a right to keep and bear arms. It’s valid law, and should be respected. (Of course, that doesn’t mean that all gun regulations are unconstitutional, any more than the First Amendment means that the FCC is unconstitutional).

    More importantly for my argument, however, is that if I wanted to change that outcome with a new Constitutional amendment, I’d be honest enough to admit what I’m doing. “I am proposing an amendment to remove the right to keep and bear arms, because I want to undo the 2nd amendment” is, in my view, a perfectly valid approach for a gun-hater to take. I have no objection to that.

    What’s objectionable about the anti-SSM folks is that they’ve proposed an amendment which would undo (at least partly) the 14th amendment, but they’re not willing to come out and frankly admit that’s what they’re doing. People have a right to oppose the 14th amendment, and propose amendments to undo the 14th; but they should admit that’s what they’re doing.