Geof Stone on the Perry Decision
Who does he think he is, anyway? Thirty-one states have put the issue of same-sex marriage to a vote in recent years, and every single one of them has rejected it. Now, here comes another activist judge blatantly disregarding the will of the majority and holding that "We the People" can't do what we want. It's an outrage, I tell you, an outrage."
This more or less captures the tone of much of the criticism of Judge Vaughn Walker's decision in Perry v. Schwarzenegger, holding California's Proposition 8 unconstitutional. This criticism is based on a deep misunderstanding of what "We the People" means. The United States Constitution is premised on the notion of majority rule, but with a very important caveat.
The Framers of our Constitution fully recognized the dangers as well as the strengths of majority rule. They understood that the majority will sometimes act in ways that are not truly public-regarding, but are instead a reflection of prejudice, intolerance, ignorance, panic, and crude self-interest. A profound puzzle the Framers encountered was how to deal with this danger.
The idea of a Bill of Rights that would forbid the government (the majority) from depriving individuals of certain fundamental liberties without good cause certainly had appeal, but as James Madison acknowledged, these "parchment barriers" could not meaningfully restrain the majority from doing what they want, if the majority have the final word on what those liberties mean.
It was here that reliance on judges to give meaning and vitality to our constitutional rights entered the picture. Because judges have life-tenure, and are therefore substantially insulated from the whims and demands of the majority, and because judges are trained to take the long-view and to bring a more dispassionate perspective to the often vexing task of interpreting and enforcing our liberties, the Framers hoped they could act as an effective restraint on majority will in the realm of our most fundamental freedoms.