What do guns, gays and immigration have in common? In a short period of time, judges have negated the will of voters, communities and state governments by overturning laws regarding the aforementioned issues. At its core, these cases involve a clash between various social goods and the right of self governance that offer no easy answers. And on a broader level, these cases represent the ongoing clash between forces that seek an even greater concentration of political power in the federal government, as well as the judicial branch against those who seek to maintain the rights of states and communities to manage their affairs. On far too many occasions, the left and the right alike have turned to the courts and federal government to enforce their will on communities, blind to the fact that they are granting the government increased power that may one day be used against them. And more importantly, they are eroding the principle of self governance that has been so essential to American Democracy.
The first instance involves the Supreme Court case of McDonald et al. v. the City of Chicago. The lead plaintiff was an elderly African-American man who wanted to purchase a hand gun to defend his home against gangs and criminals, but was barred from doing so because of the City of Chicago's hand gun ban. In a 5 - 4 vote, McDonald was victorious and Chicago's handgun ban was overturned. As someone who supports the Second Amendment and opposes King Richard Daley II's absurd handgun ban, I was initially thrilled. After all, the ban did nothing to keep weapons out of the hands of violent criminals and merely limited the capacity of law abiding citizens to defend themselves. But, further reflection, I became more ambivalent. I do recognize that there were times in which the intervention of courts and the federal government were necessary to address grave abuses of power by local governments, the move to end government mandated segregation being the best example. But, I also believe that in a healthy democracy, we must be extremely reserved about overturning the rights of local communities to direct their social, economic and political life. As idiotic as the ban may have been, I would have liked to see it debated and eventually overturned by the people of Chicago via the electoral or proposition process.
The second example involved Judge Walker overturning Proposition 8, which banned gay marriage. As a civil libertarian who opposes the state limiting the rights of individuals, I was pleased by Judge Walker's ruling. But, the thought of a single judge overturning the will of at least 7,000,000 voters is deeply undemocratic and is a prime example of the undue concentration of power in a single government functionary. Of course I recognize that the electorate should not have unlimited power to promulgate any law they desire, especially laws that curtail the rights of individuals. Without a doubt, a law that prohibited gays from pursuing their lifestyle and enjoying the legal and financial benefits of domestic partnership would have been a gross violation of individual rights. It would have constituted an example of the state limiting an individuals right to privacy and the pursuit of happiness. However, as much as I support gay marriage, I am not certain if a ban on it constitutes a fundamental violation of individual rights. Why? Because although democracy requires communities to tolerate behaviors that they find perverse, a community is not required to recognize or affirm that behavior. Ultimately, I would like to see communities and states support gay marriage through gradual social evolution that comes through healthy debate, but imposing gay marriage through the heavy hand of the courts will create an angry, unhealthy backlash. And progressives should bear in mind that one day the political and social pendulum may swing the other way and activist courts may overstep their boundaries and negate progressive laws and initiatives.
The third example of court intervention, when a federal judge overturned several key components of SB1070, Arizona's immigration enforcement is the most complex and contentious. Even though I question the wisdom and effectiveness of this law and I recognize that immigration policy is fundamentally the responsibility of the federal government, I am troubled by the heavy handed action against a state's efforts to address a very real problem. This must be looked at in the context of a federal government who for lack of political will or ability has done little to address the challenges that Arizona faces as a border state. What also troubles me is that in spite of their rhetoric, the federal government's actions appear to be driven more by political than constitutional concerns. If the Obama Administration's concern were that states and communities were usurping the role of the federal government, they would be equally critical of sanctuary cities like Chicago that have enacted de-facto amnesties, as they are of localities that seek to enforce existing federal immigrating laws.
Yes, there are times when the federal government or the courts must override the will of states and communities, but if we are to remain vigilant against a dangerous centralization of power, this must be the very rare exception. We must err on the side of allowing self governance, only intervening when local policies offer a clear and present danger to individual liberty. And conversely, to allow a sole individual or organization to so readily use the courts to overturn any law that they view unfavorably will make governance even more costly, litigious and inefficient. Even when communities are able to win court battles and uphold their desired laws, the astronomical cost of their legal defense has a chilling effect on the democratic process. The thought alone of facing months or years of costly litigation will make other cities and states unduly cautious in crafting laws and policies to address the social and economic ills that their members face. To this many progressives will respond - why is the abuse of power on a federal level any worse than the abuse of power on a local level? In the case of ill governed cities and states, individuals can vote with their feet. That is, if they are sufficiently alienated with their local government and see no prospect of change, they will leave and seek out localities that reflect their values and visions. This is precisely what the millions of Americans who have fled Chicago and California have done. But, when the federal government imposes terrible policies across the land, to where can aggrieved citizens run?