In today's Washington Post, conservative columnist George Will wrote about California Attorney-General Jerry Brown's appeal to the California judiciary that the results of Proposition 8 were unconstitutional. Will is derisive of the obvious paradox that a constitutional amendment being declared unconstitutional, and any principled person dedicated to the government being decided by the people would find Jerry Brown's argument ludicrous.
And here lies the problem for progressives. If a socially unjust law is overturned by the people, then the circumstances demonstrate democracy at its finest; however, if the majority of voters enact a provision that would deny people equality, progressives look to the courts to legislate in their favor. Conservatives cry double-standard, and are left angered that their will and their vote have not counted for anything. Frustration and resentment builds amongst all in both sides.
In our American government, we learn that only the legislative branch makes law. If the executive passes an act that supercedes deliberative legislation, or if the judiciary overturns a piece of legislation, the executive and judicial branches are seen as overstepping their bounds. Yet throughout American history, there have been numerous instances of both the executive and judicial branches doing exactly that, for better or worse. Perhaps the most notorious case of judicial bigotry was the Dred Scott case.
But keep in mind that the use of the words "notorious" and "bigotry" are only used through the lens of present-day social mores. So now, let us ask ourselves these questions:
What does it mean to be American? Is it to be a supporter of representative government and democracy? A supporter of capitalism? Does it mean wanting to be the biggest and the strongest and the best? To whom or what do we look to determine what is truly American? George Washington? George Will? George Bush? George Stephanopolous? The Declaration of Independence? The Constitution of the United States?
Throughout the world, there is one word that is at the heart of what it means to be American: freedom. America may have been late to abolish slavery, but the Emancipation Proclamation was seen to be the embodiment of the American ideal. When blacks could not go to schools of their choice, Brown v. Board of Education overturned the legal segregation policies of Plessy v. Ferguson. FDR integrated the Defense Department. Harry Truman integrated the United States Armed Forces. When that was not enough, the Civil Rights Act of 1964 and the Voting Rights Act of 1965 prohibited discrimination. And none of these events happened with the consent of the legislation. They were all executive or judicial decisions.
Before the Civil War, popular sovereignty was used to determine whether a territory would be admitted as a slave state or a free state. One man argued against that. It is ironic that a man who would later on declare that government of the people, by the people, for the people would argue against popular sovereignty, something supposedly by the people. But Abraham Lincoln understood the fundamentals of what was expressed in both the Declaration and the Constitution: that it is a self-evident truth that government is necessary to secure the blessings of life and freedom, not prohibit it. When citizens are deprived freedom and equality, it is the responsibility of government to ensure that those rights are upheld.
It would behoove George Will to pay attention to the history that he claims to admire.