Voting on Rights

“If the people of Massachusetts do not want that terrorist to be buried on our soil, then it should not be.”

So said Ed Markey, the Massachusetts congressman and current Democratic Senate candidate, on the continuing saga of what to do with the body of Tamerlan Tsarnaev.

Tsarnaev, you will recall, was the mastermind of the Boston Marathon bombing who was lucky enough to get himself shot by police and subsequently run over by a Mercedes driven by his brother and co-conspirator, Dzhokhar.

Following an autopsy that confirmed that, yes, Tamerlan was indeed killed by a combination of bullet wounds and getting a trifle too intimate with a set of SUV tire treads, most of us assumed the story of his time on Earth had drawn to a close.

We were incorrect, as Tsarnaev’s rotting corpse spent the next few weeks being carted from one funeral home to another, as protests and other forms of public pressure seemingly made it impossible to bury him in peace.  At long last, a woman from Virginia volunteered to assume responsibility for the body, and it was duly deposited into an unmarked grave.

Even as the kerfuffle has (presumably) ended, the statement above by Congressman Markey has remained lodged in my brain, and demands further exploration.

Markey has introduced a concept that until now had never crossed my mind:  That the American people can vote to have someone not buried in a particular state.  That one’s funeral arrangements can be vetoed by majority rule.

I am slightly suspicious as to how Markey determined that “the people of Massachusetts” had, in fact, decided that Tsarnaev should not be buried there.  I am a resident of the commonwealth, and I do not recall being consulted on the matter.  Perhaps an e-mail was sent and it was mistakenly rerouted to my spam folder?

I wonder, as well, whether this policy is strictly for traditional burials, or if it applies to body disposal of all kinds.  When I expire, I intend to have myself cremated.  Can I rest assured (so to speak) that my choice of locale to spread my ashes will be honored, or will it, too, be put to a vote?

This is no idle concern.  As we have slowly come to realize in recent years, the notion of one’s personal comings and goings being subject to the whims of the majority has become a normalized part of American life.

Especially if you happen to be gay.

When Minnesota’s House and Senate voted in the past week to legalize gay marriage, the Land of 10,000 Lakes brought the total number of states recognizing same-sex unions to twelve.  While in most cases this has come about either through legislation or court rulings, in three states—Maine, Maryland and Washington—gay people were, in fact, granted the right to wed by popular referenda.

The idea is catching on.  New Jersey Governor Chris Christie, vetoing a gay marriage bill in February 2012 that had passed in the Garden State’s House and Senate, said he would prefer the matter be decided by voters.

Against this view, pro-gay marriage protesters can often be seen holding signs, directed at heterosexual anti-gay marriage forces, reading, “When can I vote on your marriage?”

At the core of the issue is the question of when it becomes inappropriate, if not outright unconstitutional, for a matter of great consequence to be decided by popular will.

Lest we forget, in the United States there are certain rights and principles that very specifically are not subject to the whims of public opinion.

For example, we could not repeal the freedom of free expression even if every person in America wanted to; our Constitution mandates that each of us has such a right.  Nor could we vote away early-term abortions, which the Supreme Court inferred as a constitutional right in Roe v. Wade.

America has never been a direct democracy.  Indeed, it was not until 1914 that U.S. senators were elected by popular vote and, of course, the president is still elected indirectly, through the Electoral College, to this day.

The matter with which we began—the prospect of one’s final resting place being a matter of public opinion—is so bizarre, such uncharted territory, that the Constitution is likely to be of limited help.

We are left, instead, to argue about the “spirit” thereof—whether the principles the Constitution does explicate are reconcilable with those it does not, but which we suspect it could.

We would like to think that Tamerlan Tsarnaev’s case is sui generis—one of a kind—and therefore not subject to all that much legal scrutiny.

But this ignores the alluring power of precedence, and the way that once something is done once, it will soon be done twice and it becomes only a matter of time before it is an accepted part of American life.

This being the case, we should choose our words, and our most deeply-held principles, with extreme care and consideration.

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