In a Challenge of Constitutionality, Popularity Has No Bearing

I want you all, especially the United States citizens, to get a few things straightened out in your apparently very confused brains:

  1. We do not live in a popular democracy. The U.S. is a constitutional representative democracy. The representative part means that even if 95% of the population wants something as a law, it will only become a law if the people representing us decide it should become a law. The constitutional part means that all of those laws need to be in accordance with the constitution.
  2. No matter how many people think a law is fantastic, if it does not accord with the constitution, it should not be a law. When I say “should not be,” I mean our judiciary has a responsibility to strike down any and all parts of the laws that are not in accordance. It makes absolutely no difference if 99% or even 100% of the population think the law is a great law if it is not constitutional.
  3. The powers of our government are separated into three branches. The legislature makes the laws and represents the people; the executive branch is also somewhat representative (we elect the president) and its job is to carry out and enforce laws; the judiciary exists to make sure laws do not violate the constitution. Obviously this is a basic explanation, but the important thing to take away is the separation of powers. The judiciary’s purpose is not to evaluate the popularity of a law. The judiciary’s responsibility is to make sure the government enforces the constitution because that is the document our entire nation is based upon. The executive branch and legislative branch are held in check by the judiciary, which is meant to prevent a total majority rule in which the rights of a minority are ignored and to prevent the chaos that would ensue if the main governing document of our country were ignored.

While the current Supreme Court case on the healthcare law has inspired this post, I am by no means speaking only about this law. Far too often people try to argue against challenges of constitutionality by saying a law or a prayer or a prayer banner is appreciated or accepted by a majority. It might be Democrats, it might be Republicans, it might be Christians or any other group saying, in response to such a challenge, that “the majority of people are fine with it/like it/approve of it.” It doesn’t matter.

Once the constitutionality of a law or what have you is challenged and that lawsuit successfully finds its way to court, the popularity of it no longer matters. The popularity of something in this country matters when it is being decided during the legislative process. During the executive process, this becomes murky (DOMA is a good example*), but during the judiciary process popularity ceases to have value.

Please stop trying to say the Supreme Court should find the healthcare legislation constitutional because it is overwhelmingly popular with the electorate. Even if the healthcare legislation is overwhelmingly popular with the electorate, that is not the issue. What is at issue is the constitutionality of the law, and if we ignore the constitutionality of anything in favor of its popularity, we put our entire constitution and political system at risk.

*DOMA or the Defense Of Marriage Act is an act which the Obama administration decided not to pursue judiciary action over. By so doing, the executive branch is effectively ignoring the decision of the public’s representation in Congress. I cannot lie – I like that Obama isn’t defending any DOMA cases. Nevertheless, any executive administration that ignores legislation is effectively ignoring the will of the people conveyed via their representation in Congress.

** This post was inspired by numerous different headlines and articles I’ve read since the days immediately before the Supreme Court started the hearings on Obamacare. The last post that finally motivated me to write out my thoughts can be found here. I didn’t even get past the second paragraph before I hit, “New Post.”

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