So, it is OK for a “majority” to take away rights

Shame on the California Supreme Court for, by a 6-1 vote, caving. This ruling was entirely expected, of course. It was probably even constitutionally correct, which only reinforces the need we have been discussing for an entirely new constitution.

While the argument that the reversal of a Court-granted right contained in Proposition 8 amounted to a a “revision” rather than an amendment to the constitution always seemed a stretch, its failure to convince the Court reveals the deeper problem: under what model of “good government” can a majority of voters (which might be a quarter or so of registered voters) trump the highest court of the jurisdiction when the issue at hand involves the rights of minority groups?*

There was a time when this state had a reasonably well deserved reputation as progressive. Now it has fallen behind various New England states and Iowa in the most important civil rights issue of the 21st century so far. Indeed, although the Court claims that those marriages performed in the brief era between the first Court ruling and Prop. 8 remain legal, in fact they have been placed in an illogical second-class, and hence potentially vulnerable, position.

* Whereas it takes a two-thirds vote of the legislature to pass a budget.

13 thoughts on “So, it is OK for a “majority” to take away rights

  1. As MSS himself appears to recognize, his first sentence should read, “Shame on the California Constitution, for requiring the Supreme Court to cave in the manner that it did.”

    Apropos of these comments on what the state constitution should say about civil rights, Joe Mathews at Blockbuster Democracy fouind this passage in the decision itself. It points out that several state constitutions explicitly limit the ability of the electorate to abridge basic rights by initiative.

    I suppose the immediate, practical question is whether our current constitution really does require this conclusion by the court, or only permits it. I don’t really know.

  2. I think the decision is unjust in its effect, but I do not think it was wrongly decided.

    The text is not terribly clear and I am fairly uncomfortable with ideas about constitutional interpretation that turn on evil judges or activist judges. It would also be fairly strange that the same court which originally recognised the right to marry a year ago has somehow in the interim been turned to the dark side.

    I do think amending the bill of rights should require a higher threshold than other constitutional initiatives and that constitutional initiatives themselves should require a higher threshold than legislative initiatives.

    I would hope that when the inevitable counter-initiative is proposed the authors think about entrenching the bill of rights against initiatives in the same manner as some other states.

  3. It would have been wronger if the California Supreme struck down a constitutional amendment?

    If prop 8 was struck down, then could prop 13 or any prop could be struck down?

    It seems silly to think that certain parts of a constitution are more important than other parts when the constitution doesn’t say so.

    Are there countries around the world where Constitutional Amendments can be struck down?

    Wasn’t in Turkey a constitutional amendment struck down because it violate the secular order?

    I would think at the very least, a constitutional amendment should only be struck down if the procedure was invalid in the first place, evidently I don’t think it was in this case.

    Considering the argument revision vs. amendment. The state constitution is very vague on it’s amending formula.

    Direct Democracy means that in some cases that the people are much more conservative than the courts and politicians.

    Think about Switzerland, it wasn’t until 1971 at the Federal level that men voted to give women the right to vote.

  4. Constitutions always have different sets of provisions in a hierarchy of obligation. Attempts to write instruments without directory provisions have just never succeeded. Even in the US, where the cult of syntagmatolatry is strongest, no-one serious argues for example, that Obama’s oath-taking problems were more than an error of protocol and of no effect on the legality of his presidency.

    More seriously, there are large arguments over whether the vesting of certain powers in the President overrides the vesting of other powers in the Congress. Read any debate on the ever-expanding commander-in-chief and unitary executive claims and you will see that constitutional rules frequently conflict and the conflict must be resolved somehow. More recent constitutions make frequent use of drafting devices like ‘subject to this constitution; and ‘until the parliament otherwise provides’ but they do not escape conflicts either.

    Australia’s constitution bans religious tests for public office. Australia’s constitution also makes the heirs and successors of Queen Victoria the sovereign. There is a religious test for succession to the Crown. It follows that one of the two rules has to stand higher than the other. Should we go find whoever the Stuart claimant is and crown them?

  5. I read an Economist supplement on direct democracy at the turn of this century. I do remember that while it was a generally favorable discussion, there was one serious problem that the author raised: whether direct democracy could make difficult decisions that would lead in a more progressive direction. The question was actually raised in the context of how people voting in direct democracies may vote on measures to help the (increasingly permanent) underclass. The author hoped that they would.

    Whether that hope is fulfilled or not is a problem for the student, but what I find horrifying is that fear has generated the debate on Prop 8 more than hope. The idea of the “family being under threat,” a popular theme in my country’s generally socially conservative political discourse these days, underlies such campaigns.

    In the end, I think the author was being too optimistic. It is a mix of both direct democracy and representative democracy that could make things work, I believe, and one should check the other. (And it’s Mill’s notion of representative democracy I believe in, with PR of course.)

  6. I have no problem at all with direct democracy. I contest that s simple majority without any safeguards or thresholds necessarily constitutes direct democracy in any real sense. Even democratic Athens, contrary to the myths put out by the US founding fathers, had extensive checks in the form of special majorities, the distinction between laws and decrees, special procedures for changing laws, and penalties for proposing decrees that contravened the laws. Athenian democracy actually outlasted the Roman republic and Athens did not have Rome’s unhappy experience where, with the exception of Marius, every successful leader of the populares ended their lives at the point of a dagger wielded by the optimates.

  7. Which is why, Alan, I would agree with you (or was it someone else) when you suggested recently that any change to a fundamental law that affects the rights of a minority should either not happen at all or should require a super-majority of the voters to pass.

    Thanks to you, I will have to read up on Athenian democracy again. I last read up on it almost two years ago, in fact!

  8. I’d be inclined to entrench the bill of rights behind a whacking great super-majority and/or classifying changes to the bill of rights as revisions, not amendments.

  9. Indeed, the real shame is on the constitution. Or the people. I do think that the Court probably made as just a ruling as it could, given the bind it was put by a very strange set of constitutional provisions that evidently really mean what the title of the post says.

    I need to read the dissent to see what might have been. One line from the opinion: “Proposition 8’s withdrawal of any of those rights from gays and lesbians cannot be accomplished through constitutional amendment.”

    I would agree, but as others note above, it would be helpful if the constitution itself actually said so.

    (This dissenter was allegedly on Obama’s short list for the federal court, which suggests that we might have come very close to a unanimous decision, as one might conclude that this dissent would have been a disqualifying opinion in certain eyes.)

  10. I would suggest that any change to a constitution, whether or not it involves minority rights, should require a super-majority and/or passage through multiple veto points. What’s the point of a constitution if it’s as easy to change as a statute?

  11. I have been unclear. I would support a threshold for constitutional change and a higher threshold for bill of rights change.

    I would not distinguish between majority and minority rights because that carries the assumption that there is a dominant majority which graciously concedes rights to subordinate minorities.

  12. MSS, you don’t (seem to?) have an orchard block for Switzerland, so I’ll post this here, as it seems appropriate. The media are reporting on the Swiss vote to amend the federal Const to ban the building of new minarets (not “all mosques”, as a couple of reports have mis-stated). I can’t seem to find the text of the new amendment anywhere. Presumably it doesn’t say baldly “No new Islamic minarets”, but at least nods towards by the basic protocol of Hayekian formal neutrality by banning (I’m guessing) “tall religious buildings” – Muslim, Mormon or Maronite alike – much as the French head-scarves ban also catches yarmulkes and “large” crucifixes. Grandfathering existing buildings, from one point of view, makes a prospective ban somewhat less objectionable – I don’t think even Blocher and co wanted to be on the 7 pm news bulldozing an existing minaret – but from a different perspective could be more unfair: Swiss Catholics “get to keep” a few dozen tall cathedrals while Swiss Muslims have to make do with a mere four pre-2009 minarets. (Much as US non-establishment doctrine often allows “mainly historical” religious symbols but not new ones: ie, you couldn’t call a new city and call it “Santa Cruz” or “Los Angeles”…)

    Having said that, seeing imams from such countries as Egypt condemn the Swiss for “attacking religious freedom of minorities” does send the irony count through the roof.

  13. Incidentally, the Swiss have gone in both directions in the past. An initiative ban on killing animals without prior stunning was first proposed by animal-welfare groups but was supported by many voters who wanted to “annoy the Jews” (Christopher Hughes, The Federal Constitution of Switzerland, 1954). On the other hand, the ban on Jesuits made no pretense at formal neutrality (which would mean, ironically, that it would be legally useless at keeping out Opus Dei or the Neocatechumenate…).

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