This is a busy day for legal topics I’m interested in: the U.S. Supreme Court and gay rights law. Within the course of several hours we had the Sotomayor nomination and the California Supreme Court’s decision on Prop 8.
First, Sotomayor. She seems like a decent enough pick for the Court, but beyond her life story and the Jeff Rosen hack job on her, I don’t know much about her. I was hoping for a fierce liberal advocate to counter Scalia — I would have loved to see Obama pick Pam Karlan. Will Sotomayor be that fierce liberal advocate? Maybe, maybe not; I don’t know. You can read summaries of her past appellate rulings here. At any rate, it’s sure to be an interesting confirmation process.
As for the Prop 8 decision: no real surprise. The court upheld Prop 8 but kept the existing same-sex marriages intact. This is an incredibly long opinion — the main opinion alone is 135 pages — and I haven’t had a chance to read much of it. But the decision is ridiculous for the simple reason that it allows a majority of a population to strip a minority of equal protection of the laws. As the sole dissenting justice wrote today:
The equal protection clause is… by its nature, inherently countermajoritarian. As a logical matter, it cannot depend on the will of the majority for its enforcement, for it is the will of the majority against which the equal protection clause is designed to protect.
This case is really about whether a particular method to change the California Constitution is itself a violation the California Constitution. I’ve skimmed the decision and it seems to spend a lot of ink on the difference between a constitutional “revision” (which requires the legislature’s imprimatur) and a constitutional “amendment” (which does not), but it doesn’t really matter, because whatever you call it, changing a constitution is supposed to be difficult. As I wrote last year, it should take more than a simple majority to change a constitution. The whole point of a constitution is to have a restraint on day-to-day political passions. A constitution is supposed to be higher than ordinary law and therefore harder to amend. If it’s no different to pass a constitutional amendment than to enact a popular initiative, then you have mob rule. If not for decisions by the United States Supreme Court that found race and sex discrimination to be violations of the U.S. Constitution — which outranks the California Constitution — then it would be possible for the general population of California to enshrine constitutional discrimination against blacks and women today. The process for amending the California Constitution is nonsensical.
Our founders didn’t believe in direct democracy; they believed in representative government. They believed in the wisdom of having a particular group of people, chosen by the populace, to legislate and act in their best interests. They believed that this political class had “virtue,” an amorphous concept that I don’t think really exists, but put virtue aside and the point remains that legislators are usually smarter and more thoughtful than the populace at large. (There are exceptions, of course, such as Michelle Bachman.) The stupidly simple California amendment process flies in the face of the constitutional and political theories in which our founders believed.
Nevertheless, although this decision is a big disappointment for supporters of gay rights, I find myself not too concerned in the long run. Constitutional jujitsu is possible here: since it’s so easy to amend the state constitution, all you need is a simple majority to overturn Prop 8. The vote in November was close, 52% to 48%. Attitudes continue to change, and at some point — hopefully soon — a majority of Californians will support same-sex marriage rights, and Prop 8 will lie in the dustbin of history.
Admittedly, I have zero legal expertise.
However, I find it so incredibly odd that they could defend the stripping of the word marriage (While insisting this decision jibes with their previous ruling of legal recognition inherent in the Constitution and that CA’s DP law grants that) – and then they’d create a special, limited-time only class in the 18,000 people who were lucky enough to get married before Prop H8 came into effect.
Odd, odd, odd. And just a bit contradictory, I think. They rode the line in this decision; this feels very much like a long-winded non-decision.
The revision/amendment dichotomy didn’t make all that much sense to me.
A “revision” has to fundamentally change the basic governmental plan and framework of the Constitution. Yet the change that gave the Legislature the right to amend the Constitution was itself an “amendment.”
I’m as unhappy about the outcome of the Prop 8 case as Tinman, but I don’t share his view about the wisdom of making constitutional change difficult. What was it Thomas Jefferson said about the necessity of a new constitution every nineteen years? And about the earth belonging to the living in usufruct> Maybe those crazy Calfornians are on to something. Back in the Progressive Era, after all, when they adopted measures favoring direct democracy like the referendum and initiative, people had a more skeptical view of the Franers than Tinman.
Democracy simply does not work as a form of government, not in this age of the world. That Prop 8 was allowed to exist much less that it passed is proof of that. One of the purposes of a constitution is to protect the rights of the people against the government and the rights of the minority against the majority. Democracy operating by “majority rules” means that the majority can ride roughshod over the rights and dignity of the minority, as was demonstrated with Prop 8. The fundamental laws of a polity — which are supposed to be the bastion of the people’s rights and liberty — should not be so eay to change.
Ah, Daniel, you get back to the basic old straw… I would argue that Democracy is simply the worst form of government except all others.
But- putting it back to you- what form of government do you see as working in this age of the world?
“Majority rules” is simply always going to be a fact in any society if the majority is big enough and strong enough, whether that be through the ballot box or revolution. Sometimes it leads to silly amendments (Prohibition), some very administrative amendments (when federal elected officials can get raises), and other times it leads to very worthwhile amendments. Sometimes it even leads to bad amendments. But the nice thing about democracy is eventually the bad things can be fixed by the people.
Ah, FI, you get back to the basic old straw…confusing a “democracy” with a “republic.”
We have a republic (for the most part, despite the best efforts of both major parties to turn it into an empire), not a democracy — and for very good reasons.
Note also that the amendments you cite had to be approved by the majority of the people’s representatives in both houses of Congress and then ratified by the legislatures of 3/4 of the states.
If the Federal constitution could be amended as quickly and easily as California’s state constitution — the possibilites do not bear thinking about.
OK, I know it’s a republic, but all (true) republics have democratic elements at their core.
Nonetheless: I didn’t see your answer as to what form of government you would prefer.
An atheistic Muslim socialist fascist kleptocracy.
I think direct democracy is the form of government I would prefer, but certain significant changes in political and economic relations would need to take place for that system to be workable.
While you are correct that republic have “democratic elements,” they are not themselves democracies. The clamoring of the mob is refined into the voice of the people when mediated through the Constitution and the political system it establishes to formulate the general will into law and to carry it out. It is not perfect, but it’s better than most.
I do prefer the parliamentary model to the congressional model, however. And I like the idea of having a figurehead Head of State who can be the focus of national adulation and hagiography instead of the Head of Government whose job should be just to run the country rather than be a rock star or religious icon (the hagiography and hero worship offered to both Bush and Obama has been revolting). The primary defect of the British system is the lack of a written constitution, which should be a sine qua non. I also think that if a country has the material resources to provide for as much of the basic needs of its people as possible, then I think it should, so I have no problem with higher taxes in exchange for better social programs. Market forces being so anarchic, I think the government should also take a firm hand in regulating the economy.
I once had this very same conversation with a friend of mine and I said, “Until the revolution comes, I guess I could be happy with some kind of mixture of socialism and constitutional monarchy.”
He said, “We already have that. It’s called Scandinavia.”
So, there you go. I’d have to go with Norway. The Danish Royals are just German princelings and I have too much resentment against the House of Bernadotte from the Napoleonic Wars.