A while ago, Steven Den Beste had this to say on a disturbing news item from Denmark:
Mrs Antonsen, a member of the Danish Parliament for the ruling Liberal party, argues that representative democracy is just as democratic as referenda. "Referenda are in fact pure gambling. There is no guarantee of a positive outcome, unfortunately".Think about what she's saying here. These questions are far too important to trust to the voters to decide. We cannot do what we need if we consult them in order to find out what they really want.
"There's no guarantee of a positive outcome." You should never hold a referendum unless you can be sure ahead of time that it will result in approval.
You should not consult the people and actually let them decide because they might choose the wrong answer. The purpose of elections is to permit the people to rubber-stamp what their rulers have already decided, thus making the people feel as if they participated in the decision – even though they didn't really.Ms. Antonsen is referred to as a "Liberal", but her opinion sharply diverges from what has traditionally been known as "liberal democracy". It is yet another demonstration of the way that modern "Liberals" are deeply illiberal.
Only in Europe, you say? Hardly. Howard Bashman at How Appealing recently conducted his "20 Questions" interview with Judge Steven Reinhardt of the 9th Circuit Court of Appeals in San Francisco. Reinhardt is universally recognized as the most "liberal" judge on the very liberal 9th Circuit. Not only did he participate in the infamous Newdow case holding the Pledge of Allegiance's reference to God unconstitutional, he holds the record for having the most reversals by per curiam decisions of the Supreme Court of any Circuit Judge.
But get a load of this. I've put the good part of the answer in bold.
11. Should federal judges ever consider the likely public reaction to their rulings when determining what decision to render in a case?It is plainly not the job of a federal judge to consider the likely public reactions to his decisions. We are required to resolve cases and controversies properly brought before us in accordance with the Constitution, relevant statutes, and precedents. We are often called upon to defend rights and liberties enshrined in the Constitution, and to provide protection against public passion or popular will, particularly when those rights are being exercised by unpopular individuals or groups. Indeed, the Bill of Rights was designed to protect unpopular minorities against the tyranny of the majority. Allowing ourselves to be influenced by what an unhappy majority might say would constitute a violation of our duties as federal judges. I would exclude from this, of course, those cases in which we are required as a matter of law to examine public attitudes. The Eighth Amendment cases provide one example. See Atkins v. Virginia, 536 U.S. 304, 312-14 (2002).
(A bit of legal backstory: Atkins v. Virginia was the Supreme Court case holding that the mentally retarded cannot be put to death for murder, citing a "consensus" against the practice established on a very thin reed: a few amicus briefs (including one by the European Union!) and some polls.)
Listen to what Reinhardt is really saying. We cannot, as a matter of law, care what the majority thinks of our decisions, and we won't take it into consideration. Unless the majority agrees with us. In which case, we'll be happy to care.
Or as Moshe Dayan said: "Whenever you accept our views, we shall be in full agreement with you."
Let's not even deal with the question of what constitutes a "majority" in terms of public opinion. (I think Den Beste nailed that one, too.) Judge Reinhardt, like Ms. Antonsen, fundamentally distrusts majority rule. And there is good reason for that; majority rule has led to numerous abuses in the past, I will grant that. But if the unwashed masses happen to hold the same opinions as these elites do, then they're happy to invoke the principle of majority rule, and all is forgiven.
And invoking a rule only when it fits your pre-conceived notion or personal bias is not called the rule of law. It is called hypocrisy.
Posted by Thief at February 3, 2004 11:57 AM