IS MARRIAGE A RIGHT? Mark Barton replies to Mark Tardiff

Mark Tardiff writes: The founders' principle is that political sovereignty resides with the people, who delegate necessary authority to their representatives.

Mark B.: Representative democracy was certainly one of the founders' principles. But an even bigger part of the reason that the US constitution is so highly regarded is that it's leavened with anti-democratic principles to prevent tyrannies of the majority. For example, freedom of speech is intrinsically anti-democratic. It says in effect that no matter how many votes of like-minded citizens you may be able to muster, you may not have your representatives suppress the opinions of people you disagree with. The framers of the Massachusetts constitution had similar views. They said, "Equality under the law shall not be denied or abridged because of sex [emphasis added], race, color, creed or national origin." Implicitly, that means no matter how large or passionate a majority of the people there may be that desires to discriminate on those criteria. While the
constitution remains in effect, the people of Massachusetts have surrendered that particular aspect of sovereignty, and it's the job of the Supreme Judicial Court to strike down laws that are enacted without that authority. If the people of Massachusetts have belatedly realized that some aspect of their culture depends on a form of discrimination
that they have renounced then too bad. Of course if they have a sufficient supermajority they can always amend the constitution to get it back, but the thought ought to give them pause. After all, if some aspect of culture relies on an authority so terrible that it was permanently renounced, can that aspect of culture really be as good as all that?
posted by Eve at 1:41 AM | link

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