Posted by: Chris | February 24, 2012

The Republic of New Jersey

Andrew has been quite rightly pushing back against the argument, recently in vogue with opponents of same-sex marriage, that plebiscitary, as opposed to representative, democracy is the best representative of “the people’s will” and the preferred arena for settling contentious legislation

But the opposition was adamant about one thing: the courts had nothing whatever to do with ensuring minority rights, if that minority were gay. Going the court route was undemocratic. I remember being lectured on this by the Congressional Committee in the DOMA hearings in 1996.

And I saw their point at the time when public opinion was so hostile. I was always more leery of the court strategy than my friend and ally in the fledgling movement, Evan Wolfson, at the time. I didn’t want a Roe-style over-reach. I thought that public education and state legislative debate was the right way forward. If in the end, the courts reacted to a shift in public opinion, and we won the constitutional and legal arguments, great. But I thought state legislatures were the main way to go.

So we did. And guess what? They moved the goalposts on us. When we actually began to win in state legislatures, such as California (twice!), or New Hampshire, or now Maryland and New Jersey and Washington State, that process became suddenly unacceptable – and undemocratic! – as well. Even on an issue many hold to be a core civil right, we were told the courts were irrelevant and now that the legislatures were irrelevant. This was particularly odd coming from conservatives who at one point in time were strong believers in restraints on majority tyranny. But this is what a legislative debate can do that no referendum can, and it’s why the founders established a republic not a pure democracy…

I think we should relish the fight because every time we get to debate this, even when we lose, we move the needle slowly in our direction. But it troubles me how on issues like this, representative democracy is being slowly eroded. It seems to me that precisely on issue like civil rights for minorities, if the courts are deemed too distant from public opinion to be relied on, then pure direct democracy which empowers the tyranny of the majority is too close.

As we noted months ago, it is peculiar to  observe conservatives embrace a form of government that is both inherently demagogic and expressly denounced by our Founders (and, for that extra Glenn Beck irony, was introduced during the turn of the century by the hated Progressives).

However, it seems that Andrew goes too far in repeatedly castigating NJ Governor Chris Christie using this line of attack:

Christie is a man whose candor I admire in many ways. But this was an act of cowardice and unfairness and a misguided disregard for representative democracy. How many other duly enacted laws must now be sent to the referendum process for final judgment. Why have a legislature at all? And this from the party that claims to defend the Constitution…

America was designed as a republic, not a democracy. This is something Chris Christie doesn’t seem to understand.

I don’t think the generalized argument holds for Christie.  He did not veto the bill because he thought a referendum would be preferable; he vetoed the bill because he opposes the bill and made a campaign promise to veto it, as he argues in the above video.*  Though I personally disagree with Christie’s decision and his arguments, it seems eminently true that he is within his prerogative as governor and the head of a coequal branch of the state government to exercise his opinions in that fashion. Indeed, in countering the Democratic state Congress’s passage of the SSM bill, one might argue that Christie’s action actually embodies, rather than defies, Madisonian republicanism (as ambition has been made to counter ambition).

The plebiscitary decision remains ancillary.  Christie put forward the referendum option as a (admittedly self-serving) alternative to trying to override his veto or force him out of office.  Rather than have both sides return to the voters in 2013 to settle the impasse, Christie announced that he would not resist efforts by Democrats to put SSM on the ballot in 2012, if they could not beat back the veto.  Of course, doing so would also decouple an incindiary issue from his reelection campaign and give him a handy retort to the inevitable accusations of radicalism, a calculation of which Christie is certainly not ignorant.  However, in neither his explicit or implicit rationales has Christie argued that the issue was inappropriate for legislative action or better suited for a referendum.  Thus, superficial and disappointing as his decision may be, it is not clear that Christie has violated the norms of “republican” democracy.

*I encourage everyone to watch the above video.  Not only is it an effective summation of the governor’s views on the issue, it is also another displayof what a superb communicator Christie is.  He easily swats away both of his interlocutors and stakes out a position that comes across as both moderate and principled.  Proponents of SSM, take note: do not be too complacent with the stumblings of the Romneys and Santorums of today; this here is argument, if not the face, of the future of the Republican party.



  1. Goddamn it WordPress. This is like the third or fourth time you have randomly truncated a post. I will correct this soon. In the meantime, enjoy an (even more) ugly frontpage.

    OK, all set now. I will note that the post screwed up a couple more times, but fortunately I had saved a copy of my text this time, so retyping wasn’t necessary. Is anyone else having crazy problems with WordPress screwing up posts with video or images in them?

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