I have a novel and controversial theory of my own, and here it is: Judges ought to follow the law. If the state Legislature and the state constitution, not to mention the U.S. Constitution and the U.S. Supreme Court, support the death penalty, then judges should be required to take notice and not just vote their feelings or their politics.
The New York judges are being invited to override the Legislature by endowing themselves with special anything-goes authority. The inventive professors argue that "cruel and unusual punishment" has a unique historic meaning in New York state, and the phrase was intended to take battles over the death penalty "out of the theater of political judgment."
That's a revealing phrase. Attempts to take issues "out of the theater of political judgment" are mainstream now, particularly among activists on the left who know they can't get a majority behind them. So instead of old-style political organizing to sway voters, we are seeing tactics designed to frustrate and circumvent majorities.
The most obvious arena for anti-majoritarian politics is, of course, the courts. The left says the right is trying to "pack the courts" and "turn back the clock," but most people on the right and in the center would settle for judges willing to follow the law and resist canceling out the voters by imposing their personal values.
Litigation as a substitute for politics is another growing problem, causing former labor secretary Robert Reich to raise the question of whether his fellow Democrats still believe in democracy. He was referring to the suing of tobacco companies, gunmakers, and perhaps the producers of fatty foods and liquor as "end runs around the democratic process." Reich called it "faux legislation, which sacrifices democracy to the discretion of administration officials operating in secrecy."
New frontiers for circumventing democratic politics keep appearing. Take the use of United Nations declarations and precedents to create new "norms" of customary international law that could supersede national laws around the world. This is a little-known backroom effort that nobody pays much attention to, but it could do some damage. Abortion lobbyists, for instance, are promoting a norm of "reproductive rights," which is being interpreted to mean the right to abortion anywhere in the world, regardless of local laws. It could apply to girls as young at 10, without parental consent. Since the Supreme Court has ruled that customary international law is enforceable in American courts, an international norm on abortion would apply here, even if a constitutional amendment banning abortion were passed.
The advantage of this semi-stealth system is that you can push things through that would never be adopted though democratic processes in most countries. Richard Wilkins, a Brigham Young University law professor, says abortion advocates are showing "contempt for democracy and sovereignty" by using unaccountable and lightly supervised international meetings this way. He's right.
In part this anti-democratic corner-cutting reflects a changing ethic on the left: Outcomes are more important than procedures. Winning is what counts, not how you win. The furtive and often illegal guerrilla warfare against anti-quota regulations shows a determination to win at any cost.
So do the similar campaigns against welfare reform, charter schools and English immersion in the schools. The rise of this ethic helps explain what has happened to our campuses, where democratic procedures and normal intellectual give-and-take have largely disappeared (free speech, open debate, full disclosure, listening to opponents instead of trying to punish them). If winning is the only value, why debate when you can suppress?
The other half of the anti-democratic problem is elite disdain for the masses. This shines through in a lot of rhetoric on how majorities are always wrong -- wrong about capital punishment, race and gender, immigration and most of the elite agenda. Government should be conducted by "the party of intelligence," said Gunnar Myrdal, the Swedish lawyer-economist who wrote "An American Dilemma," the classic 1944 book on race. Though this party of intelligence naturally "despises the democratic principle," he said, it should work within a democratic framework for practical reasons.
We have many Myrdalists among us today. They just don't put things as frankly as Gunnar.