A reader writes — or, rather, wrote a few weeks ago, after the midterm elections:
As glad as I was about the end of Roe, since then I have started to wonder whether it was a mistake to let human rights be put to a vote. Isn’t the whole point of rights that we don’t put them up to a vote? Do you think that’s [Dobbs’s] fatal flaw?
Let’s assume for a moment that Justice Kavanaugh’s concurrence was right, and the Constitution is scrupulously neutral about whether unborn children are entitled to legal protections against homicide. If the Supreme Court nevertheless decided to invent a legal protection for them, it would not represent the triumph of the idea that rights are too precious to be put up to a vote. The right to life would, in that situation, have prevailed through a vote of the justices rather than a vote of legislators.
Next let’s assume instead that the best reading of the 14th Amendment yields a legal entitlement to protection from homicide for unborn children, as argued most prominently by John Finnis and Robert P. George. If the Supreme Court ruled accordingly, the ultimate cause of the protection of the right to life of unborn children would be the long-ago vote of the ratifiers of the amendment.
When people say rights should not be put up to a vote, they are, I think, confusing two truths with one falsehood. It is true that a person can have a “right,” in one important sense of the word, even if his society does not recognize that right. Thus we can say that people have a right to practice their religion as part of an argument that societies that do not allow them to exercise it are unjust.
It is true, also, that it may be sensible to take steps that keep temporary or simple majorities from infringing on rights. It might be advisable for the frame of a government to require supermajorities to diminish a right. The ratifiers of the First Amendment decided to insulate several rights in that way. But of course even those rights could be voted away: if supermajorities decided to amend the Constitution, or voters tolerated elected officials who infringed these rights and appointed judges who refused to protect them.
What’s false is to suppose that rights can be protected without the support of people with enough power to enforce them. In a democratic society, that’s a lot of people.
The trouble with the phrase “rights shouldn’t be put up to a vote” is that it does nothing to advance us toward answers to the crucial questions of what rights governments should protect and how it should protect them.