Why the Claim that the Obergefell Decision is Undemocratic is Wrong

Does the Court ruling in Obergefell v. Hodges violate the principle of democracy as those writing in dissent (Chief Justice John Roberts and the Justices Scalia, Thomas, and Alito) have claimed? James Madison, the Father of the Constitution and Bill of Rights, would say no.

Bolstered by the legal arguments of the dissenting justices, those opposed to the Court’s decision will continue to campaign against same-sex marriages, even though they lost. It is therefore important that we examine the merits of the arguments from the dissenting justices. (1) One of the main charges brought against the majority is the claim is that this opinion is a threat to democracy and religious liberty. This allegation is based on a misunderstanding of the relationship between rights and majorities in a democracy. On this subject, James Madison had the greatest insights, and he is primarily responsible for our current understanding of how to best protect rights in a democracy.

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In his fight against religious establishments in Virginia, James Madison learned many lessons, one of the most significant of these lessons was that bills of rights were “parchment barriers” when facing overbearing majorities. Acting through their representatives, majorities will inevitably push through legislation that will violate the rights of others, even when expressly prohibited by a bill of rights as happened in Virginia when an attempt was made to pass a general assessment for the support of teachers of the Christian religion. The general assessment bill failed but it prompted Madison to reconsider the assumption that legislatures are the best protectors of the rights of the people. In his Vices of the Political System of the United States (1787), which was written in response to the failures of the Articles of Confederation, Madison questioned “the fundamental principle of republican Government, that the majority who rule in such Governments, are the safest Guardians both of public Good and of private rights.” In exploring the root of this problem, he concluded that the cause lay “in the people themselves.” It was for this reason that Madison originally opposed adding a bill of rights to the Constitution, although he later changed his mind and became the primary author and mover of the amendments that became our Bill of Rights. Even though he changed his mind and pushed the amendments through, Madison never changed his mind about the relationship between majorities and violation of individual rights. Continue reading

Should the US Constitution be sacred? – Daniel Lazare – Aeon

I have a lot of respect for the Constitution, but I think Daniel Lazare makes a great case for letting go of our Constitution worship. Lazare argues that “[n]othing could be sillier than the notion of strolling into the 21st century with a pre-modern plan of government. It’s like sending an 18th century man-of-war into battle against a guided-missile destroyer. The US political system’s age, in other words, is showing.” Read his entire argument here:

Should the US Constitution be sacred? – Daniel Lazare – Aeon.

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History News Network | How Would You Change the Constitution? Here’s My Proposal.

This is an interesting article and I admire Al Carroll for making such a bold proposal. While I don’t agree will all his suggestions, I agree that “nothing should be so revered that one cannot question it, change it, or discard it, and blind worship is always to be avoided.” We should be able to debate, discuss, and even criticize the Constitution. Jefferson may have had went too far in advocating a new constitution for every new generation, but he correctly saw the value of experience. Jefferson wisely advocated “that laws and institutions must go hand in hand with progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times.”[1]


[1] Thomas Jefferson to Samuel Kercheval (July 12, 1816) in The Life and Selected Writings of Thomas Jefferson: Including the Autobiography, the Declaration of Independence & His Public and Private Letters, edited with an Introduction by Adrienne Koch and William Peden. (New York: The Modern Library, 2004.writings): 615-16.

History News Network | How Would You Change the Constitution? Here’s My Proposal..

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