Democracy and the Courts: Alternative Checks on Austerity in Greece

In May 2011, “Athens agreed to impose a new $9 billion round of tax increases and spending cuts and speed up nearly $75 billion in promised privatizations.” In early June, a new round of tightening was being planned by the Greek government. It was feared that those cuts would deepen the recession and thus further shrink the tax base, making it even harder for the government to cut its deficit. Meanwhile, Reuters reported, “Greeks are showing signs of reaching the limits of their endurance as budget cuts imposed under Greece's first bailout a year ago have helped to push unemployment close to 16 percent.” The news service cited police reports of more than 80,000 people packing the main Syntagma square outside parliament on June 6^th—the 12^th consecutive day of protesting there.

                                              Reuters

Reuters reported that George Papandreou, the Prime Minister of the parliamentary state government, “used his parliamentary majority to ram through successive rounds of austerity including cuts to pensions and civil servants' salaries. But faced with the popular anger, some PASOK lawmakers [were] becoming uneasy.” The extent of protests suggests that the cuts may have been hitting up against bone. Short of a coup, however, protests do not in themselves arrest a government.

Interestingly, pressure from the E.U. on the Greek state to get its public finances in order has not been countered by intervention by the ECJ or a state court to protect constitutional obligations of the state toward civil servants, the unemployed, and the poor. In the case of some of the American states that have been instituting rather severe austerity programs, the governments have been reminded of their respective constitutional obligations in ways that have forced the governments to back off on some of their cuts. Specifically, the republics’ respective constitutional courts have been stepping in on behalf of the people (and the constitutions). North Carolina, Kansas, and New Jersey illustrate this dynamic, which is curiously lacking in the case of Greece.

The New York Times reports that in June 2011, “A judge in North Carolina has scheduled a hearing . . . to examine whether education cuts there violate previous court orders. ‘The current financial difficulties of the state do not relieve, justify or excuse the State of North Carolina from its constitutional obligation to provide each and every child in North Carolina an equal opportunity to obtain a sound basic education,’ the judge, Howard E. Manning Jr. of Wake County Superior Court, wrote in announcing the hearing.” How is Greece doing on its constitutional obligation?

The newspaper adds, “School districts in Kansas have filed a lawsuit arguing that with recent cuts in education spending, the state has effectively reneged on the promises it made to abide by old court rulings — a charge the state denies. ‘Just because the checkbook is empty doesn’t mean that the constitutional standard is swept away,’ said John S. Robb, a lawyer for the school districts, adding that Kansas had cut taxes as it cut education spending. ‘Especially if you are cutting taxes and claiming poverty,’ he added.” In the case of Greece, part of the problem may be tax evasion rather than a tax cut “solution” to deficits. Both Kansas and Greece should raise as much revenue as possible without sparking a recession; a tax cut or looking the other way in tax collecting is a luxury that neither state can afford.

Finally, “’Like anyone else,’ the New Jersey Supreme Court ruled, ‘the state is not free to walk away from judicial orders enforcing constitutional obligations.’ The court ordered the state to spend another $500 million in those districts. . . . Governor Christie of New Jersey, a Republican, complained after the schools ruling that ‘as a fundamental principle, I do not believe that it is the role of [New Jersey’s] Supreme Court to determine what programs the state should and should not be funding, and to what amount.’” At the same time, Christie could blame the high court for having to institute tax increases as he thanks the justices for relieving him of the political fallout from the cuts that he would have had to make. As of early June 2011, Papandreou could not avail himself of such a cover, and he had the other European states breathing down his back through the E.U. (and the world through the I.M.F.). Consequently, he was facing mass protests, whose utility in pushing back on the cuts does not have the force of a judicial ruling. It is ironic that the least democratic of the governmental branches may be the ultimate protector that a people can call on to counter lapses by their own government.

Sources:

Michael Cooper, “Courts Upend Budgets as States Look for Savings,” The New York Times, June 7, 2011.

George Georgiopoulos, “Greek Austerity Plan Draws 80,000 to Athens Square,” Reuters, June 5, 2011.

“Kicking the Can,” The New York Times, June 6, 2011.

Gay Marriage in New Jersey

Just after New Jersey’s legislature passed a law legalizing gay marriage, Gov. Chris Christie followed through on his promise to reject the bill by quickly vetoing it and renewing his call for a ballot question to decide the issue. In returning the bill to the Legislature, Christie reaffirmed his view that voters should decide whether to change the definition of marriage in New Jersey. "I am adhering to what I've said since this bill was first introduced – an issue of this magnitude and importance, which requires a constitutional amendment, should be left to the people of New Jersey to decide," Christie said in a statement; "I continue to encourage the Legislature to trust the people of New Jersey and seek their input by allowing our citizens to vote on a question that represents a profoundly significant societal change. This is the only path to amend our State Constitution and the best way to resolve the issue of same-sex marriage in our state.”[1] Why stop at issues requiring a constitutional amendment? Although technical legislation requires representatives to wade through and discern specific ramifications pro and con, broad policy questions could also be subject to binding referendums. That is to say, representatives could be seen as doing only what the electorate cannot viably do.

Whether enacted by a legislature or by direct democracy, a law that takes basic rights away from a minority such as gays could be illegitimate even though passed democratically. Democrats in the New Jersey legislature argued “that same-sex marriage is a matter of civil rights, and that civil rights should not be subject to referendum.”[2] In other words, there are limits even to direct democracy, and the courts have a legitimate role in interpreting whether individual rights have been inordinately oppressed by the will of the majority.

In terms of legitimacy, passing gay marriage by referendum is the most legitimate, and without any need for the courts to step in to look at the matter of individual rights. Next legitimate would be such a law passed by a legislature. Again, the judiciary would not need to look at whether a minority is being tyrannized by a majority. Where a referendum or legislature passes a law or constitutional amendment forbidding gay marriage, as in 30 of the American republics at the time of Christie’s action, the democratic rights of a majority are pitted against the civil rights of a minority. Courts could look at existing constitutional articles to assess whether an amendment is constitutional. However, it is conceivable that such articles could be changed such that an amendment that refuses the right of a minority could not be touched by a court.

To take another example, all of the federal and state constitutional articles that prohibit slavery could be repealed and a new amendment making the practice legal would make it constitutional. No court could touch it because courts are limited to interpreting constitutions. In the case of gay marriage, the current equal protection language could be used to declare a federal amendment barring gay marriage unconstitutional. What if the due process language were changed by amendment and an anti-marriage amendment added? The U.S. Supreme Court could be forced to defend the new amendment if nothing else in the U.S. constitution could render the addition unconstitutional. Where the amendment is to a state constitution, planks from the federal constitution could be used, as was the case in California on Proposition 8 a week or two before the New Jersey legislature passed gay marriage.

From this, we can take away the following points:

1. On matters of broad policy, in which ideological judgment is more salient than technical knowledge, direct democracy is more legitimate than representative democracy. Such policy need not be limited to matters requiring constitutional amendment. Invading Iraq and extending the federal debt ceiling are two cases in point.

2. The majority acting to protect minority rights by legislative means or a referendum is the best case scenario in a republic because no constitutional interpretation by judges is necessary. 

3. Where legislation or a referendum bars a minority from exercising a right, the legitimacy of majority rule is pitted against that of individual rights. Accordingly, the judiciary has a legitimate interpretive role as such matters must be judged.

1. Angela Santi, “New Jersey Gay Marriage Bill Vetoed By Chris Christie,” The Huffington Post, February 17, 2012. 
2. Kate Zernike, “Gay Marriage, Passed, Awaits Veto by Christie,” The New York Times, February 17, 2012.