Wednesday, February 25, 2004

Life, liberty, and the pursuit of happiness - except for them

Bush has come out in support of a constitutional amendment banning gay marriage. If passed, it would be the first time the US constitution has been amended to limit, rather than expand, human rights. It's a potent symbol of America's decline, and a turning point on the road from shining beacon of freedom to oppressive theocracy. What happened to the nation which once proclaimed "life, liberty, and the pursuit of happiness" for all?

Meanwhile, NZPols is suggesting that the courts should be driven by public opinion, rather than the law, in making their decisions. On utilitarian grounds, of course. One wonders where this would have left the cause of (for example) Civil Rights in America... would they still have segregated schools because the public "just wasn't ready for it"?

In New Zealand, of course, we don't have US-style judicial review of laws. But NZPols points out that judges following public opinion would probably have ruled differently on the foreshore and seabed issue - which would have been a Good Thing because it would have avoided a divisive debate. Which I think perfectly illustrates my problem with the idea - that it makes people's access to due process and equal protection under the law subject to the whims of the majority. What is being suggested here is a return to the bad old days of partial justice, where minorities or socially powerless groups were unable to enforce their legal rights - not because they didn't have access to the courts, but because the facts of the case were less relevant than the relative status of plantiff and defendant.

(It is also a perfect example of one of the knockdown arguments against utilitarianism: that it legitimises the systematic oppression of unpopular minorities if everyone is "better off" (under whichever criteria you use) that way. Whether the oppressed are "better off", or why they should suffer for the benefit of others is somehow considered to be beside the point.)

Interpreting the law is a slippery business, but I'd far prefer that judges kept public opinion out of it, thankyouverymuch.