Courts protect fundamental rights from tyranny of majority

As Americans, we proudly embrace the promise of equality. Our Declaration of Independence proclaims "that all men are created equal." The 14th Amendment to the U.S. Constitution prohibits states from "deny(ing) to any person ... the equal protection of the laws." The words "Equal Justice Under Law" grace the face of the U.S. Supreme Court building in Washington, D.C.

Yet when equality stares us in the face, we often stumble. It's difficult to look at people who differ from us and see them as equals. It's challenging to see people who believe and behave in ways we do not understand and accept that they are as worthy as we are of the fundamental privileges of citizenship. Perhaps it's human nature, deeply seated, that causes us to create rivals all around us for the distinction of being the right ones, the best ones -- the ones who are meant to set the rules for everyone else. But in a democracy such as ours, government isn't supposed to play favorites when it comes to basic freedoms. And contrary to what some are suggesting in response to the recent gay marriage decisions in federal courts, the majority cannot vote away fundamental minority rights.

Our Bill of Rights enumerates many protections in the law that have never been popular with everyone, and were never meant to be. Individual rights and liberties enshrined in both our state and federal constitutions would mean little if they could be taken away by majority will. The First Amendment promises freedom of belief, speech and press, among others, even when views expressed and behaviors engaged in are controversial or disturbing to many. The Second Amendment promises freedom to bear arms even when many object to the proliferation of weapons among us. The Fourth Amendment promises freedom from unreasonable searches and seizures, even when this sometimes defeats criminal prosecutions. There is probably no freedom one group of Americans holds dear that another group of Americans hasn't challenged vociferously at some point in our history.

So who protects individual constitutional freedoms when they collide with majority views? In our system of checks and balances, it is often our courts. Unlike the executive and legislative branches of government, which are designed to respond to the popular will, the judicial branch is designed to hold allegiance to our nation's laws, and its laws alone. Often, courts are the bulwarks that protect minority rights, and give our Bill of Rights meaning. Without them, all of us would risk the erosion of our personal liberties.

This role in balancing majority rule with minority rights is especially vital in a society as diverse as ours. Yet judges who render decisions based on the rule of law -- not a particular ideology -- are often subject to attack by those who want their ideology to prevail. Critics of the courts call for public votes on basic rights of citizenship, or appeal to the "democratic process" to allow a greater role for politics and popular sentiment in both the composition and decisions of our courts. But to me, what we are really hearing is a call to abandon our government's promise of equality for all. What we are really hearing is a call for government to play favorites in how it bestows individual freedoms.

Contrary to the critics' demand that courts yield to popular pressure, we should all be thankful that our Constitution, and the courts designed to uphold it, understand that there are two prongs to our democracy: majority rule and minority protections. In a free society, enjoying our individual freedom means respecting the freedom of others. Today the minority rights targeted may belong to citizens who fall outside one's personal circle of concern. But what about next time, when they may be one's own?

Barbara Hood is a retired attorney and founding board member of Justice Not Politics Alaska, a new nonprofit that works to protect Alaska's judicial selection and retention system from increased political influence.

The views expressed here are the writer's own and are not necessarily endorsed by Alaska Dispatch News, which welcomes a broad range of viewpoints. To submit a piece for consideration, email commentary(at)alaskadispatch.com.