America is a young country. She was born into a world that was already ordered – distinctly categorized and striated like the geometric arrangement of stars and stripes that would soon grace her flag. She grew up with the watchful, often covetous gazes of her estranged family, the European superpowers, whose vigilance was matched only by their unflinching desire for conquest. And, as she grew, she adapted. She shed her neophyte skin – transforming from a nascent, fledgling nation into a formidable global force. Yet, unlike her European cousins, America’s growth and metamorphosis was condensed, not attenuated by centuries of preexisting social foundations and underpinnings. It is hard to believe that, only 50 years ago, a little less than one-fourth of America’s age, the Supreme Court was hearing arguments about the legality of segregation in our nation’s school system in Brown v. Board of Education. Because such relatively radical social changes have occurred in such a condensed period of time, the system of American government has had to adapt, reconciling its founding document, the Constitution, with shifting social mores through a series of amendments and Supreme Court decisions.
During this process, a crucial debate has arisen regarding the role of the Judiciary Branch in interpreting and adapting the Constitution in the face of social attitudes and majority public opinion. Social attitudes and public opinion naturally favor the majority, as, of course, the founding edicts upon which America is based have always underscored the importance of democracy and the populace’s views. But deferring to majority rule is not without its consequences, especially for the minority. The groups have consistently changed – from African-Americans to women to Hispanics to Asians to the disabled to LGBT individuals – but a minority group has always been the subject of discrimination and domination at the hands of the majority, and, just as America is quick to diversify its litany of oppressed minority groups like a stock portfolio, she is also quick to forget this oppression, letting it slowly fade like a sunburn from a hot summer day. What, then, is the role of the courts in this predicament? To defer to the whims of the majority, even if the legislature passes laws that fundamentally oppose and undermine the rights of the minority? Or to become, as some would call, “activist judges,” who interpret and apply the Constitution to mandate new precedents to address the contemporary social and political landscape? To complicate matters further, one must also consider the best strategy that minority groups should use to achieve equality and fair treatment by the majority. Should they use the legal system to attain their goals, even if legal precedents are subject to overturn and appeal? Or, should they use the legislature, lobbying and biding their time until the majority changes its mind, if it ever does, and they can pass laws that will defend and enumerate their rights?
These questions currently affect the debate concerning equal rights for LGBT citizens, who have essentially been relegated to a position of second-class citizenry in America. Their plight foregrounds these pivotal issues, framing them in a pertinent social and cultural discourse. No doubt, the views on LGBT issues, such as gay marriage, have become consistently more liberal over the last decade. (Gallup) Yet, these shifting social opinions have not stopped the passing of discriminatory measures nationwide, such as California’s own Prop 8. Laws such as these are fundamentally a natural and obvious extension of the democratic process – they are decided by the popular vote in a process central to America’s democratic system. Yet, their effects contradict these democratic ideals. By discriminating against a particular group, in this case LGBT citizens, voters are essentially undermining the very document that allows them to draft, vote for, and pass these laws. Thus, one must rely on America’s judicial system to curtail these transgressions against the Constitution. Indeed, judges must act, as they always have, as the protectors of the Constitution, preventing laws that compromise its tenets regardless of the majority opinion. They must also, however, interpret the Constitution in a contemporary context in order to adapt to the social and political concerns of a new era. Yet, this is not to say that this task is left to the judiciary system alone. Rather, while judges must protect the ideals of the Constitution, even against the whims of the majority, those who wish to secure their rights as minorities must do so through the legislative process. If LGBT citizens, and, indeed, all those in the minority, hope to make substantial legal progress, they must shift their focus towards comprehensive legislative solutions rather than relying on judges to accomplish this in their stead.
Since the conception of the Constitution, there has been vigorous discourse as to its proper interpretation and application. The debate is largely centered on how much leeway is permitted when interpreting this hallowed document. There are those who argue that the Constitution must be interpreted from an “originalist” standpoint, one that focuses on the intent of the Framers. Former Attorney General Edwin Meese III encapsulates the brunt of this argument:
“Where the language of the Constitution is specific, it must be obeyed. Where there is a demonstrable consensus among the framers and ratifiers as to a principle stated or implied by the Constitution, it should be followed as well. Where there is ambiguity as to the precise meaning or reach of a constitutional provision, it should be interpreted and applied in a manner so as to at least not contradict the text of the Constitution itself” (Meese, 17)
In theory, this argument seems simple and straightforward – adhere as closely as possible to the exact words of the Constitution and try, as best as one can, to follow the intent of the writers of the Constitution. In practice, however, this theory becomes much more convoluted. How can one possibly know how the Framers of the Constitution would have responded to contemporary social and political issues? As Justice William Brennan states, “It is arrogant to pretend that from our vantage we can gauge accurately the intent of the Framers on application of principle to specific, contemporary questions” (Brennan, 25). Brennan is exactly right. The Framers are, unfortunately, no longer with us. They cannot clarify for us their intention for the Constitution’s applicability to these complex, often divisive issues, such as abortion and gay rights. As Jeffrey Toobin writes in his expose, The Nine: Inside the Secret World of the Supreme Court, the originalist perspective has been an enduring one on the court and one that many conservative justices often espouse. In the Roe v. Wade case, for example, the dissenting justices used this line of argumentation to frame their opinion.
“No one argued that the authors of the Constitution intended for their words to prohibit states from regulating a woman’s reproductive choices; to Bork and Scalia, that ended the debate over whether the Supreme Court should protect a woman’s right to choose. If the framers did not believe that the Constitution protected a woman’s right to an abortion, then the Supreme Court should never recognize any such right either” (Toobin 18).
This view is startlingly myopic. Yes, the authors of the Constitution did not intend “for their words to prohibit states from regulating a woman’s reproductive choices,” but how could they have? How could the Framers have predicted that any such issue would ever arise? The Constitution is an incredibly enduring and ingenious document, one that has guided our country for generations, but the Framers were not clairvoyant. They could not have foreseen that an issue such as this would emerge, and that is precisely why the Supreme Court is tasked with interpreting and applying the words of the Constitution to these contemporary issues. As Toobin writes, Justice Harry Blackmun interpreted the Constitution and applied it to this modern issue; he did not simply dismiss this debate in its entirety based on a stringent and limiting viewpoint as the dissent did.
“Harry Blackmun had acknowledged that the words of the Constitution did not compel his decision. ‘The Constitution does not explicitly mention any right of privacy,’ Blackmun had written, but the Court had over time ‘recognized that a right of personal privacy or a guarantee of certain areas or zones of privacy does exist under the Constitution…this right of privacy…is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy” (Toobin, 18-19).
Blackmun recognized the evolutionary nature of the Constitution, a view that many of his fellow justices share. Justice Brennan, outlined this perspective brilliantly. He argued that the Constitution is a living, breathing document – one that adapts to the ever-changing social and cultural climate. When describing the Constitution, Brennan stated,
“We current justices read the Constitution in the only way that we can: as 20th-century Americans... The ultimate question must be, what do the words of the text mean in our time? For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs. What the constitutional fundamentals meant to the wisdom of other times cannot be their measure to the vision of our time. Similarly, what those fundamentals mean for us, our descendants will learn, cannot be their measure to the vision of their time” (Brennan, 27)
Judges, therefore, are tasked with adapting the Constitution to 20th-century needs, and should not adhere to the anachronistic viewpoint of the originalist framework.
If they do so, they tread the precarious line of allowing the majority to oppress and discriminate against the minority. Just as the Framers could not have predicted the issue of abortion, they could also not have predicted the current issue of gay rights in America. However, LGBT rights seem to be one of the central, and most divisive, issues in America during the 21st century. Because of this, many cases involving LGBT rights have come before courts in the past decades, forcing judges to try and interpret and apply the Constitution to these issues. Two such issues have recently been decided in court, the unconstitutionality of both Prop 8 and the . Don't Ask Don't Tell policy.
Both of these issues were fundamentally infringing upon a minority’s intrinsic Constitutional rights, rights that are afforded to all citizens in the United States of America. Those that enabled and passed these laws, therefore, are enabling this discrimination, and are subject to the checks and balances of the Judiciary Branch. Simply because the majority wishes to limit the rights of a minority group does not mean that they should be allowed to - the Constitution protects all of its citizens equally, and is not subject to the whims of the majority electorate. As James Madison states, “where the greatest danger lies…[is] in the body of the people, operating by the majority against the minority.” (Madison) The task of the judiciary system, therefore, is to limit this majority when they overstep their bounds and rob others of their Constitutional rights, even through the proper legislative channels. These judges are not ‘activist judges,’ overstepping their bounds and writing new laws. Rather, they are simply undoing the damage that the majority electorate and Executive Branch have caused. It was the Legislative and Executive Branches that overstepped their bounds by putting these laws into place, and judges are only doing their job – protecting the Constitution, by striking down these discriminatory and unjust measures.
What then, is the role of the minority in this political climate? As a gay person myself, I often feel as though my rights are being decided for me in a political process in which I have no say. Political bodies draft propositions and laws that affect me, and, if the majority dictates, they are passed. This marginalization is not insurmountable, however. Indeed, the social and political climate of America is changing, and legislative solutions that will secure these fundamental rights for LGBT citizens may not be so far off. By arguing about these rights in an open, political forum, there is a risk of undermining them, effacing their sacred, inherent value, but it has been done before. When the 19th Amendment was passed, granting women the right to vote, the political world was astir, and women’s suffrage was not at a loss for opponents. Because this right was achieved through legislative means, however, it has more permanence than a court decision granting women the right to vote would have, as precedents always run the risk of being overturned. If the right to choose, for example, had been ratified as an amendment, there would be no chance that its opponents could overturn it. Since it was decided in the Supreme Court, however, it is still at risk. This is why LGBT citizens must also turn to legislative solutions in order to achieve their goals. They cannot idly wait for others to do it for them; those that seek to limit their rights certainly are not.
America has matured. She has grown, making leaps and bounds towards the goals she once set for herself. But now she is listless, torpidly watching as her fellow nations pass her in leaps and bounds. If she wants to persevere, to flourish in the contemporary global climate, she must regain the virtues of democracy that she so fervently protected in her youth. Democracy favors the majority. But, democracy also implies certain fundamental rights beyond the power of the majority electorate to control. These rights must be protected by the judiciary - the judiciary must extend the Constitution to account for the contemporary social and cultural climate, and the minority, in turn must rely on legislative solutions to protect themselves from the whims of the majority.
Works Cited
The Great Debate: Interpreting Our Written Constitution (Brennan, Reese)
Toobin, Jeffrey. The Nine: Inside the Secret World of the Supreme Court. New York,
NY: Random House. 2008.
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