Raw Majority Power: Why Checks and Balances Matter
16 March 2009
Raw Majority Power: Why Checks and Balances Matter
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Michael D. Peabody is a California attorney and the editor of ReligiousLiberty.TV, a website dedicated to celebrating freedom of conscience.
An epic battle played out on two levels at the California Supreme Court on March 5. On a surface level, attorneys fought over a technical issue of whether the Proposition 8 prohibition on gay marriage represented a revision or an amendment. On the deeper level, the question asked was whether there are any limits on the majority to impact the rights of the minority.
It was a powerful argument - that the people of the State of California have the “raw power” to change the state constitution in any way that they please.
Ken Starr, an esteemed advocate, may have won the battle but lost the war when he asserted that, “the right of the people is inalienable to change their constitution through the amendment process. The people are sovereign and they can do very unwise things, and things that tug at the equality principle.”
Chief Justice Ronald George stretched Starr’s argument to explore its dimensions. He leaned in and asked a hypothetical - if Proposition 8 said that homosexuals had no right to form a family relationship or raise children, could that still be done by amendment? Starr said it could. Then George took the argument to the constitutional wall – could the voters also remove the right to free speech? Starr said yes, the voters have this right.
Essentially, what Starr argued was that the people have an inalienable right to take away the inalienable rights of others. Free speech is perhaps the most fundamental of fundamental rights. The people, in Starr’s argument, would also have the power to remove the right to free exercise of religion.
Granted, protection against discrimination on the basis of sexual orientation is a California state law provision, but Starr’s argument opened the door for a much broader and more frightening application.
America is a nation that discovered existing rights that were given to us as part of our birthright as human beings. Our rights were not invented or produced to be given out by the state, either through the power of the many or the few.
We have a Bill of Rights, not to describe our limitations, but to tell the state and any authority over us, which would presumably include the people, that they cannot trample on our individual rights.
Many people are arguing that the Constitution only applies to the Federal Government and not to the states. Some gleefully raise the argument that the First Amendment says, “Congress shall make no law . . . “ and that states can do whatever they want when it comes to religion.
It turns out that they are right - up until the Reconstruction that followed the Civil War. When the Bill of Rights was written, it harbored a major, nearly fatal, flaw. The Bill of Rights did not apply to the states because the founders knew that it would have outlawed the “peculiar institution” of slavery, and this would have been a deal breaker for the Southern States. So it did not apply.
This led to the pressure being built up to the point of the Civil War where “states rights” was the rallying cry. When the Federal government emerged victorious, seceding states were forced to ratify several provisions in order to be readmitted to the union. The Thirteenth Amendment prohibited slavery in all of the states, and the Fourteenth Amendment applied the Bill of Rights to the states.
Today, lawyers invoke “the due process clause of the Fourteenth Amendment” in order to assert federal jurisdiction in discrimination lawsuits against the states. Thus, if a state violates your right to, for instance, free speech, you can sue the state in federal court using the Fourteenth Amendment. Otherwise, the state would be your final judicial authority and in states where supreme court justices are voted into office, you might have a steep hill to climb.
Ken Starr was wrong when he said that people had the power to overcome inalienable rights, but this is just the latest salvo against the Fourteenth Amendment. In recent years, many legal scholars have questioned the legitimacy of the Fourteenth Amendment because they claim it was forced upon the South who ratified it under duress. However, it remains the last and best protection of all kinds of freedom in the United States.
It is easy to get worked up into a frenzy over an issue such as same-sex marriage and tie it into the rights of the people and ultimately assert that the majority may claim ownership of the inalienable rights of all. But that runs contrary to the principles of the consent of the governed, freedom of speech and religion, and sets the clock back to the time when such fundamental values were debatable or were even lost.
Starr’s argument, however compelling on the surface, illustrates a frightening willingness to scorch the earth of all forms of freedom in order to deny a freedom to an unpopular group.
In the history of the world, pluralistic societies that remained free such as the United States have been an anomaly in a sea of paranoid dictators and murderous tyrants. Today, we take these truths to be “self-evident” but they cannot be taken for granted. We recognize that all rights are intertwined and that is it poor policy to surrender rights too easily, particularly when we are implicating rights that we ourselves enjoy.
In many ways, the marriage cases are turning out to be the canary in the coal mine. How we respond to its cries will determine whether freedom will survive this century.
Search
- Elaine Nelson on Satire: The Miracle of Chance
- Steve Moran on Why Can’t I Own Canadians?: Grace, the Holy Spirit, and the Threat of Fundamentalism
- jay rasco on “Panentheism” Is Not a Four-Letter Word!
- Tom Zwemer on Interpreting the Bible Can Be Difficult
- Elaine Nelson on Why Can’t I Own Canadians?: Grace, the Holy Spirit, and the Threat of Fundamentalism
- Donna Haerich on “Panentheism” Is Not a Four-Letter Word!
- Tom Zwemer on Cornel West Speaks on Truth at Oakwood University
- Tom Zwemer on Why Can’t I Own Canadians?: Grace, the Holy Spirit, and the Threat of Fundamentalism
- Just an Engineer on Satire: The Miracle of Chance
- Jeannie Brown on Strangers in the House
Comments
I followed a link from http://www.religiousliberty.info/blog/?p=92 to here and I think they make a better argument there.
Thanks for sharing the link, Edward. I appreciated reading Alan Reinach's contrasting opinion, even though I thought his argument was weak. Reinach asks how far can people go in reversing a fundamental right? As far as the majority wants, according to his and Starr's argument. The rights of a minority are nonexistent in his view. I wonder if he would be making the same argument if Prop. 8 had lost. To close Reinach speaks of the coming tyranny, seemingly oblivious to the tyranny that he has just proposed. The respondents to his post were almost evenly divided when I read the thread, with a slight plurality to those who found fault with his argument.
Michael makes an important point in noting that "the marriage cases are turning out to be the canary in the coal mine. How we respond to its cries will determine whether freedom will survive this century."
These issues have been longstanding.
If the majority votes for a candidate that promises to give them a tax return even if they pay no tax, and he wins, expect your tax rates to go up.
Rights in this country are far worse than this artical reveals.
At least it contemplates issues the public votes on.
Tax law and even county tax assessment is not voted by the public. Our county even askes for a inventory list of screws and parts you might have on hand in order to tax them. And if you dont use those screws by the next year, you can expect to be pay tax on them again.
What happened to freedom as expressed in a Co-op or a buyers club?
That is true freedom. One can choose to be in or out depending on if it is worth it to that person.
Those who choose to be in are eligable to take advantage of whatever benefits are available and those who dont arent.
We have quite a strange state of affairs in this country.
The majority can vote on anything even if its neigh illegal and we all have to go along with it.
On the other hand a miniscule minority sues the government on things like salmon recovery or spotted owl and they win so then we all ahve to go along with it too.
What would you rather have making decisions?
A actual referendum or a few miscreants who win a lawsuit?
Here is what Alan Reinach says
"How far can the people go in reversing a fundamental right? The justices were reminded that previous ballot initiatives were upheld that did reverse fundamental rights: for example, Proposition 187 eliminated the right to affirmative action based on race. Courts have frequently extended as well as retracted various rights. Rights are not something absolute, immutable, something that grow only in one direction"
Now I can admit that I do not understand what he means by a right growing only in one direction but expand and retract. But how can an adventist, one who understands prophecy ever claim that a fundamental right can be overthrown by the will of the masses. We live in a republic (AKA representative democracy) not a full fledge democracy (AKA direct democracy). The reason we chose a republic was because it was best fit to protect the rights of a minority. Our people, those that landed on plymouth rock, were a minority and our government was formed to protect against the 'tyranny of the majority'. If California opens the doors to this sort of argument. What fundamental right will no longer exist after this so called fundamental right?
Alan Reinach should be carefull in his enthusiastic support of Ken Starr's arguments. If fundamental rights can be trampled on, we no longer live in sustainable democracy, but one in which individual liberty has no meaning. What a scary thought.
However, within the context of Adventism, in our zeal to purify our nation, we are shooting ourselves in the foot with a venom that has no anti-venom. Soon the same picture of immorality and deprecation of society will placed upon God's people, charging them with heresy and blasephemy against God because of their fidelity to God's law and refusal to follow after papal decree.
Oh May God have mercy on his people, May God have mercy on our brother Reinach for falling for such an ill fated argument.
David
Ken Starr was talking about the hypothetical.
Why is "idea" NEW on the State or federal level where provision is made for the State and Federal constitution to be amended...and the difficult means of how it is to take place?
Perhaps we would rather have a totalitarian state or king?
Most cry for "democracy" rather than a Democratic Republic...which we are... if the present issue is going in their favor...but if not then hysteria such as this article breaks out.
No system allows for absolute "liberty" of actions.In the "religious liberty" realm ask the LDS about their history regarding polygamy among consenting willing adults.
regards,
pat
Here is the privileges and immunities clause and the due process clause of the Fourteenth Amendment:
"No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
It has always seemed to me that the outlawing of polygamy as a religious institution did not respect the right to practice religion as one's conscience dictated. However, when those who practice polygamy abuse women or children, that is illegal.
Carrol,
Absolutely the action of "abuse of women and children" under any circumstances should be unlawful.
My point is that society retains a right to declare "actions/activity" resulting even from "faith" morally objectionable (right or wrongly) unless specific guarantees are offered under the "Bill of Rights." Even these can be changed by the people/representative/state/federal will if ammended "lawfully" according to the US Constitution or State respectively.
This is nothing new...nor Ken Starr's hypothetical comment regardless of the hysteria felt by some or doubts created and given in this article regarding SDA's and religious liberty etc.
regards,
pat
So do you think Reinach is consciously trying to hasten the enactment of Sunday laws?
Why the consistent worry about a Sunday law? This is the SDA red herring--around every legal ruling there looms the possibility of a Sunday law.
This cannot be proved from the Bible, but only by a 19th century interpretation. All Bible interpretation is dependendent on the contemporary thoughts of those who read it. Did
the original readers in the first century ever think a Sunday law might be the correct interpretation?
Carrol,
If you were asking me... after googling "Reinach" I would say He is just trying to "boost the troops" to the ever "impending cause" as he sees it. You can cry wolf, wolf, to often! If it happens... THEN evaluate it in it's proper context and appeal any wrong doing.
regards,
pat
What I was implying was that if we are concerned about our own religious liberty we ought to be willing to protect that of others.
Carrol,
What I am implying is that all "actions" are not a "guaranteed right" in any society.
regards,
pat
Am I missing something? I thought this was a labeling issue. What the term “marriage” means or is suppose to mean. Under California Domestic Partner Rights and Responsibilities Act, the rights and duties of marriage were extended to persons registered as domestic partners. The difference is that one group are domestic partners and the other group are married partners. It was my understanding that the people of California have only requested that the term “marriage” apply to heterosexual unions based on the historical definition. It was only after the California Supreme Court, in all their wisdom, rationalized that different terms were not equal–as if calling a horse a zebra changes a horse into a zebra. I do not think it was the intent of the people of California to remove an inalienable right of the minority, but only to define the term of one inalienable right with that of another.
How would you feel if heterosexual marriage was changed to be called a "domestic partnership"? Isn't marriage a big part of life?
People have the right to do stupid things all the time and the church doesn't try to change the law. I couldn't care less about what gay people do and I don't see how it threatens me.
They want to throw freedom down the tubes just to stop gay people from calling whatever it is that they have marriage. Yes, it is no big deal and I don't see why the religious people can't figure that out and get off their high horses. They don't run the country the way they think they do.
This is not at all what our Founders intended or what our Constitution says. The religion clauses in the First Amendment to the Bill of Rights are, by definition, “counter-majoritarian.” The Constitution ensures the will of the majority, but the Bill of Rights protects the rights of the minority. Justice Jackson said it well more than 60 years ago in West Virginia Board of Education v. Barnette, 319 U.S. 624, 638 (1943):
“The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”
The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections
So help me understand why it's okay to have a handful of unaccountable judges telling the very citizens who have adopted and chosen to live under the Constitution, that the power they gave themselves to amend their own Constitution is illusory. Of course majoritarian rule can be tyrannical. But certainly not as tyrannical as the diktats of 5 judges, appointed for life, who, to paraphrase Humpty Dumpty, say the Constitution means exactly what they choose it to mean - nothing more and nothing less. Shouldn't we be far more concerned that a few judges can so easily impose their values on us by using mental gymnastics to read meanings into constitutions that would have been unthinkable a generation or two ago?
Of course the people of this Country could amend the constitution to redefine or take away fundamental freedoms and rights. What happened in California with Prop 8 was not a taking away of a fundamental right. Rather it was the people saying to the California Supreme Court: "We don't agree with you that gay marriage should be a fundamental right in this State."
nate,
Substitute desegregation. I'd love to know how that doesn't change the argument?
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