30 June 2015
'They're not actually supposed to be voted on.' A word on Rights and Democracy
MSNBC is running ads in some magazines -- I saw it in The New Republic, -- featuring a photo of and comment by prime-time talker Rachel Maddow: "The thing about rights is they're not actually supposed to be voted on. That's why they're called rights." Is Maddow a believer in natural rights? It would seem so, for only on such an assumption does her comment make sense. The timing of the ad, if not the person in the picture, makes the context obvious; the implication is that gay rights are natural rights -- that sexual-preference equality is not to be voted on. There may be other ways to describe her opinion, but "undemocratic" is the one that comes to mind. Of course, as conservatives love to remind us, we are not a democracy under the Constitution and the document does place certain rights beyond the reach of votes short of amending the document itself. But the Constitution itself was ratified; it was put to a vote -- many votes, in fact. The amendments to the Constitution were ratified, including the Fourteenth, upon which the Supreme Court majority in the Obergefell case depended to strike down laws banning same-sex marriage. Rights are not merely discovered and accepted as law, as Maddow may believe or wish; they must be enacted and ratified. This is not an argument against Obergefell, since the authority exists in the Fourteenth Amendment and I see no reason to assume, as the minority did, that the amendment covers only marriage in the "traditional" sense. But the fact remains that the right affirmed in Obergefell was neither an invention of the majority nor an eternal principle. It existed because the states, through their representatives, voted to ratify the Fourteenth Amendment. There are no rights in this country without voting. By Maddow's logic we never needed to ratify an amendment abolishing slavery, since people always had a right not to be enslaved, even though the necessity of an amendment seemed obvious enough to Lincoln and his allies. The populist opposition to Obergefell may be wrong to demand a popular vote on same-sex marriage, but the progressives are just as wrong to argue, as Maddow appears to, that rights have nothing to do with democracy. Would she prefer a rule of philosopher kings and queens, exclusively qualified to intuit natural rights from who knows what? Remarks like hers only fuel the conservative argument against all forms of progressivism, hypocritical as it may be, which is that progressives distrust democracy because they distrust people less learned (or "sensitive") than themselves. But Maddow may simply harken back to a pre-Constitutional notion of rights theory. The Declaration of Independence, for instance, was an assertion of rights that didn't throw itself on the mercy of voters. Instead, the Founders ratified it by force of arms. I've often described the 21st century gay-rights movement as "revolutionary," but I didn't think the movement meant it that literally. Maybe they don't -- they seem pretty pacifist much of the time -- but when Maddow says things like this you wonder a little.