FEBRUARY 7, 2012 7:50PM

Proposition 8 and Alexis DeTocqueville On American Democracy

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The most important single work on American Democracy has just that title in reverse: Democracy in America by Alexis DeTocqueville, written in 1831.

His theory as to why he wrote the work was correct then, and more importantly now, as to predictive power of observing a country when it is young in order to see the elemental forces of that country that play out over time.

Thus, DeTocqueville chose America for the good reason that one could so easily observe such elemental forces at work in the New World, something that is somewhat fictive in character for all of Western Europe save possibly for England.

Although its safe to say that a conservative French aristocrat like DeTocqueville of course would have been taken aback at the the idea of same-sex marriage, upon reflection, I think that's only for a moment, even as he would then he would see something of a potentially grave dilemma, of the Dred Scott variety as far as what Marxists like to call "internal contradictions."

As to what wouldn't surprise DeTocqueville about the origins of the gay marriage issue in the United States, it would derive from his observation that Americans were very deeply attached to social equality.

That attachment derived he thought, and I think correctly, from the lack of a heriditary aristocracy in America at the time of the settlement of the United States, although the slaveholders of the Deep South tried to mimic such a thing by rather assiduoulsy aping the manners of English landowners, sometimes with a heavy dose of French aristocratic mannerisms a la Mr "Created Equal" on his slave plantation at Monticello.

So on the one hand, DeTocqueville would see gay marriage as merely the expression of that expansive power of the notion of social equality.

For DeTocqueville, that expansive power of the idea of social equality derived from how hard it would be to draw a line once one slightly retreated at all from the Body Politick notion at the root of the aristocratic world from which he descended, and which America never really quite had from its origins.

Once one admitted universal white male property holding suffrage, which came to pass in most of the United States between the time of the Revolution and the Age of Jacskon just taking shape when he wrote, DeTocqueville correctly predicted that this egalitarian notion would then slowly but then rather easily extend to all white males, since once you go very far along the notion of equality, its very much a slippery slope as to how one can deny others that same notion, even as he correctly foresaw that extending that idea to race would be a severe challenge to the unity of the United States.

But, when you observe the span of American history since the French Genius wrote, its obviously the case that white male property suffrage naturally extended to all white males, which then made it hard to deny female property holders the suffrage, and then all women, and after a lot more violent struggle, blacks.

At the same time, the other feature of Democracy in America that DeTocqueville correctly thought really marked America apart was the role of Christianity, which may, or may not, make for a Dred Scott, Roe, or Bush v Gore result if litigated before the Supreme Court, if one would hope not.

Although the original impulse to equality DeTocqueville saw in Christianity, his main point on that line of inquiry as to the inertial force of Christianity was how compared to Western Europe, America retained a deep attachment to Christian values, something that can be seen today in the Tebow phenemonon, if also curiously now the backlash against it too as to a deepening cleavage in American life over religion.

As to the prescience of DeTocqueville as a predictor of the future, you don't see Western European sports stars "Tebow," even though Christianity in Western Europe long predated America. Its very unlikely that there will be an avowed atheist President any time soon for the same reason, and even Romney suffers somewhat on the point of not being of the traditional religious background identified by DeTocqueville in 1831: Protestantism.

Even in the present day, America as to religiosity as expressed in surveys has more in common with Saudi Arabia than DeTocqueville's native France, which creates something of a dilemma for the Supreme Court as to the issue of gay marriage, since Christianity as often professed runs into the American tradition of social equality rather abruptly in the case of gay marriage, creating the possibility of a Dred Scott, Roe, or even Bush v Gore effect, although there's a lesson in those decisions that are instructive today.

In Dred Scott, what we would now call the "reactionary party" won its case, and lost at the same time.

The reactionaries won, because the Supreme Court affirmed, correctly, that at the time of the signing of the Constitution, slavery was very clearly envisioned, if it was also something of an embarassment too; hence all the oblique references to "other persons," rather than to slaves.

The reactionaries more fundamentally lost in that case however, because in the opinion, possibly to be fair influenced by the recent death of the Chief Justice's wife, and note you don't know his name for a reason, said Justice went out of his way to use provocative language as to rationalizing the decision on grounds that as they say in the field of constitutional law were "overbroad."

Similarly as to controversial Supreme Court decisions, there are not a small number of legal scholars, Justice Ginsberg among them at one point, who support legalized abortion, but didn't care for the very broad way that the Court rationalized that decision either, some, if not Ginsberg, again as being overbroad in character as to a non-elected branch overruling the will of the People in striking down 46 states' abortion laws, many of which existed at the time the Amendment being used to rationalize that decision was in fact being ratified.

Note, Propostition 8 was voted for by the majority of Californians, if, as Le Comte DeTocqueville pointed out with respect to the blacks in the American South in 1831, electoral majorities can be rather tyranncial too as to depriving minorities of things that the majority takes for granted.

As to Bush v Gore, having the Supreme Court decide that case might be something we all still rue, not because of who won, but because of the exercise of judicial power in such a fundamentally poltical way, since it might well have been the case that if the clock had run on the usual Constitutional processes, Bush would have won anyway, but without the baggage. Having the Court look like its voting its personal political preferences into law is always risky to the rule of law in general, whether left wing or right wing people do it.

Whatever happens down the road with Prop 8 and associated cases, such things usually are accepted more when the scope of what is decided is minimized, and the consensus on the Court maximized as to numbers, but none of it would surprise Alexis DeTocqueville.

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Glad you found it interesting Token.
As to Alexis DeTocqueville I commend you to his section on Tyranny of the Majority. This is the real lesson behind Prop. 8. “You don’t get to vote on it.” This is why we have a Bill of Rights: minority protection against majority tyranny.

The Prop. H8 decision is in and, for reasons I explained, it’s actually better than many of the complainers claim. It appears to have been crafted to bring Justice Kennedy into our court so-to-speak. If the Prop. H8ers seek an en banc hearing (I hope they do) the result, I think, will be a much broader ruling on our favor and make in more likely that SCOTUS will grant cert.

In the end it will all come down to one simple rule: Sorry, but you don’t get to vote on it. As the late Justice Robert H. Jackson wrote over 60 years ago,

"The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections." [Italics mine.]