There is no question that the laws in a democratic society reflect that society’s values. The United States of America was founded upon certain values reflected in the Declaration of Independence and the Constitution, including the freedoms to practice one’s religion, speak one’s mind, and to be secure from unwarranted intrusions into our privacy. The “Bill of Rights,” the first ten amendments to the Constitution, are a direct reflection of the values held dear by their authors and the states that ratified them. Societies, however, evolve over time, and struggles inevitably ensue between individuals and groups. There are those who want to adhere to the original letter of laws and those who believe a nation’s laws, including its constitution, should change to reflect that evolution. Problems arise and debates ensue when issues not considered by the authors of the Constitution arise, such as same-sex marriage, abortion, and other social issues. Problems also arise and debates ensue when issues contemplated in the Constitution emerge, such as the issues of gun control and privacy. Revelations over the past few years regarding government surveillance programs and repeated instances of school shootings both propel to the fore front issues addressed in the Constitution, specifically, in these instances, the Fourth and Second Amendments, respectively.
Current debates regarding same-sex marriage, abortion, drug legalization, and other issues, pose particularly thorny problems precisely because there is, in most cases (drug legalization actually has a long and undistinguished history in the United States), these are issues not directly addressed in the Constitution. Gun control advocates and opponents can draw from the early history of debates regarding the Second Amendment, but the issue of gay rights requires a deeper level of understanding of constitutional law and how constitutional rights to privacy, and the Declaration of Independence’s right to “Life, Liberty and the pursuit of Happiness,” apply to a question – should ‘homosexuals be allowed to legally marry.’ As the gay rights movement has increased its political power, it has succeeded in significantly influencing the debates regarding those rights.
Similar to the role of the nation’s elected representatives in shaping laws to conform to changing social and cultural ways, the Judicial Branch of government reflects the evolution of society. The process by which federal, including Supreme Court, justices, are confirmed is a direct reflection of societal evolution. That is why the constitutional power to nominate federal judges is so important. Presidents use their authority to nominate to the Supreme Court individuals who reflect their own values, and senators debate those nominations based upon their own values, which reflect the values of the states they represent. In short, the laws of a democratic society almost always reflect the values of at least a majority of that society. Debates regarding majority versus minority rights, and the extent to which laws actually do represent certain values will always take place. That is the nature of a democratic process. The strength of a democratic system, however, lies also in the extent to which the values of the minority are represented and, to a large degree, protected.