Abstract: Several countries have decided, constitutionally or otherwise, to adopt liberal policies regarding same sex relationships in the past decade. These victories have overwhelmingly been the result of constitutional challenges to discriminatory laws. This opinion piece explores the role of constitutions in ensuring minority rights and considers some criticisms of the democratic/anti-democratic nature of these protections. I ultimately propose, using theoretical work from John Rawls and Jean-Jacques Rousseau, that constitutions can be incorporated into a slower moving track of democracy that is better able to protect minority rights than parliaments and elected officials.
In 2017, a high court in Taiwan ruled in favor of same sex couples’ right to legally marry, requiring parliament to bring in legislation for new marriage laws. However, in 2018, three separate referendums were held in Taiwan to assess the people’s support for the changes; a majority of Taiwanese voters seemed to back “pro-family” groups that opposed same sex marriage. At the time, the Taiwanese government had issued a statement that the referendums would not affect the changes required by the court rulings. Still, there were tangible fears that the referendum would make eventual legislation weaker, say legal protection but not the right to marry.
As a technical reaction to the referendums, the government agreed to not alter its existing civil definition of marriage law – rather, the government would propose a special law for same-sex couples. Despite this, and in a striking turn of events, lawmakers debated between three different bills on same sex unions and passed the most progressive of the three. This legislation ensures equal marriage rights, rather than relegating same-sex relationships to unions or family relationships. The Bill also offers limited adoption rights, the only bill to do so, and the bill was passed with 66-27 votes.
Leaving the dignity of minorities up the whims of electoral majorities (through referendums) strikes a sinister tone. If minorities suffer a disadvantageous position in society by virtue of being a minority, it is unlikely that they will be electorally liberated by their oppressions. It is striking how many countries have been able to legalize same-sex marriage on the basis of constitutional challenges, as opposed to parliamentary votes or referendums – Taiwan, India, the US, Costa Rica, just to name a few. These are constitutions that lay out expectations of equality, dignity, and fundamental freedoms as citizens of the state. In this piece, I will explore the value of constitutional checks on democracy for the fight for minority rights.
There is, however, a strong push from the opposite bench that contends that democratic processes must be respected. The idea that any legislative decision must be put to a vote by the public resonates with a kind of proceduralism that dictates that democratic procedures ultimately produce democratically legitimate outcomes, regardless of the content of those outcomes. Therefore, if the people are represented well, polling stations are widely accessible, and people are well educated, then a people should be allowed to decide for themselves when and if they are ready for certain kinds of legislation. Indeed, the Singaporean government for example argues that the Singaporean people are simply not ready for a repeal of 377A, a colonial era law that criminalizes consensual sex between men.
People sympathetic to this position may look towards Ireland as an example of a country that was ready and willing to actualize same-sex marriage through a referendum. This argument, however, ignores some of the nuances of the Irish situation. The referendum in Ireland was held specifically to change a part of the constitution that prohibited parliament from legislating same sex marriage from the outset.
The Difficulty with Electoral Politics
It emerges that certain democratic aims (right to equal treatment under the law, bodily autonomy, etc.) should not be up to electoral outcomes, and there is value in committing to these rights regardless of procedural “validity” in the form of popular support. Constitutions, I argue, have the power to bypass electoral difficulties regarding minority rights in this way. As electoral politics create perverse incentives for politicians to appeal to what is popular, rather than what is just, it is difficult to rely on politicians and parliaments to pass minority-friendly legislation.
To quote Dr. Menaka Guruswamy, a Senior Advocate at the supreme court of India who successfully challenged Section 377 of the Indian Penal Code,
“Courts have answered questions of social divisions and discrimination across histories and cultures… it was Brown vs. Board, not Congress. There is something very profound about being a judge in court, where the expectation is that despite your own personal beliefs, you will adjudicate for better and more complete dignity. These constitutional spaces are appropriate [in fighting for minority rights] because judges do not have to cater to electorates”, Dr. Menaka Guruswamy, Litigating Freedom
It is not simply that parliaments are unwilling to legislate minority rights, for fear of electoral retaliation. It is that parliaments deliberately undermine minority rights for electoral gain, as is evidenced by the numerous unconstitutional laws passed by states like Alabama, Georgia, etc. limiting access to abortion. Without a constitution to strike down such laws, state lawmakers could undermine minority and women’s rights with impunity.
A Two-Track Vision for Democracy
There is value in direct democracy and electoral democracy, but there is also a desperate need to check the pitfalls of more direct forms of democracy in our societies. I propose that a two-track vision of democracy is necessary to combat the negative outcomes of fast-paced electoral politics: a deep, slow moving, enduring declaration of rights as embodied by the constitution, and a fast moving, responsive, and timely version of democracy as embodies by parliament, local representatives, and national level executives. The challenge, however, lies in ensuring that the constitution is continuously responsive to a greater set of democratic ideals, a greater vision of justice and equity that endures.
We consistently face the challenge that constitutions may be incorrect or become outdated over time. Or, constitutions might directly inhibit progressive legislation, as in the case of Irish marriage laws. There doesn’t seem to be much of a way to change the content of these constitutions without resorting to public opinion, through constitutional referendums. I propose that the constitution can be made to represent a greater vision of justice that is responsive to a community’s needs through a dedicated, representative deliberative process. In the next section, I explicate this process using the works of Jean-Jacques Rousseau and John Rawls.
Rousseauvian Common Will & Rawlsian Deliberation
Rousseau, famous for his seminal work The Social Contract, argues that citizens can create a democratic nation through the actualization of a common will, where the common will ensures collective interests whilst preserving individual and group freedoms. We must create rules for fair terms of engagement with each other, such that we can survive collectively without encroaching on individuals’ rights and freedoms. Ergo, the common will involves a principle of reciprocity, such that no member of a community would wish to be treated unfairly, and would therefore refrain from proposing discriminatory laws. Rousseau’s articulation of the common will is useful here, because it acknowledges that the establishment of fundamental rights is the result of a process of deliberation such that all parties involved in the discussion are able to accept the terms of cooperation. I argue that constitutions are a viable avenue for the actualization of Rousseauvian common will, as the constitution delineates fundamental principles for the relations between a state and its citizens, and its citizens with each other.
I propose that the constitution be reviewed on a generational basis by a small and representative deliberative body. There are two questions worth clarifying: who constitutes this deliberative body, and how are they to deliberate on the contents of the constitution?
I propose that this deliberative body be constituted by descriptive representatives, where descriptive representatives are defined as those that represent the typical experience and embody characteristics of the particular group they are representing (Mansbridge, 1999). We may, for example, want a variety of representatives from different racial, sexual, gender, and economic groups. We may also consider intersections between these groups, and subsequent intersections with geographical locations – it is likely that a low income person of color in California faces different challenges than a low income person of color in Alabama. I note that these representatives are not proportional in number to the population they represent; rather, each identity and each intersection should receive a single representative. Ensuring this kind of representatives ensures that minority groups in particular are represented to the substantial degree, and are able to express their terms of fair and free cooperation with substantial negotiating power.
There are several ways of deliberating this type of common will. John Rawls, in his writings on public reason, proposes a particular framework for this kind of deliberation. According to Rawls, we must propose reasonable conceptions of justice to one another such that these concepts appeal to individuals regardless of their prior ideological affiliations. These reasonable conceptions of justice delineate fair terms of cooperation within a system of social cooperation, and should involve an element of reciprocity such that all citizens should be ready to accept these terms. An important feature of these reasonable conceptions of justice is that they must refrain from ascribing any definition of “the good life”. This means that any ideological conception that promotes a certain way of life above and at the expense of other lifestyles is an unreasonable and unfair conception. An example of a fair term of cooperation is the freedom to express religious values, up until those expressions encroach on another’s right to bodily autonomy and personal freedoms, such as the right to love. In this way, Rawlsian deliberation of Rousseauvian common will, with particular attention to arriving at concepts of justice rather than a “good life”, allows us to arrive at principles that support minority rights and freedoms as a committed goal.
Of course, several considerations constrain our view of this proposal. There is the problem of essentialization, where this descriptively representative body may inadvertently essentialize, generalize, or over-simplify the experiences of the groups it tries to represent (Mansbridge, 1999). I argue that the consideration of intersectionalities (between race, class, gender, sexuality, etc.) can reduce this type of essentialism, but the larger the deliberative body the more difficulties this presents in the process of deliberation itself. I acknowledge the criticism that the deliberative body, like electoral politics, may also be liable to majoritarian pitfalls and stalled progress due to deliberative gridlocks. Indeed, what happens if the body cannot agree on any terms of fair cooperation? I argue that these deliberative difficulties are acceptable, so long as the committee takes its adequate time in arriving at principles that all members can agree upon. This is because other, more responsive organs of democracy will continue to serve the people, and the prior version of the constitution will be available until a revision is proposed. Therefore, I argue that it is a strength of this slower moving aspect of democracy that we have much, much more time to deliberate its contents, and therefore have much more capacity to ensure representative and equitable dialogue.
In essence, a constitution creates space for slow moving, representative deliberation that is difficult to actualize in mega democracies and large states. It is an avenue for minorities to demand their rights and freedoms, and an avenue to actualize a common will that truly addresses the needs of the entire nation when it comes to fair terms of cooperation and co-existence.
I’d like to acknowledge my classmates from YHU3266 Democratic Theory, in particular JY for his insights on constitutional constraints on democracy. I’d like to acknowledge Dr. Menaka Guruswamy, whose talk on her work against India’s Section 377 inspired large parts of this piece. I’d also like to thank Prof. Sandra Field for her guidance on this project.
Jane Mansbridge (1999) ‘Should Blacks Represent Blacks and Women Represent Women? A Contingent “Yes”‘, Journal of Politics 61 (3), 628-657.
John Rawls (1997) ‘The Idea of Public Reason Revisited’, University of Chicago Law Review 64 (3) (Summer 1997), 765-807. You can leave out §5 (pp787-794).
Rousseau, Jean-Jacques. (1988). On The Social Contract, trans. Donald A. Cress. Indianapolis: Hackett.
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