Judicial Activism: Same Sex Marriage And The Aftermath Of Proposition 8
CONSTITUTIONAL INITIATIVES: DIRECT DEMOCRACY OR MOB RULE?
The founders of early democracies were well aware of the dangers inherent in giving the masses direct control of legislative decisions. Senates and other similar bodies were deemed necessary for a plethora of reasons. Chief among these is that the masses are not informed about the many intricate and difficult issues involved with such decisions. This does not mean that I am against such practices, but I do believe that such decisions should be open to judicial review.
Proposition 8 is a prime example of why I believe that a constitutional initiative should be open to review. When the powers to decide such delicate issues as gay marriage are put in the hands of laypeople, the entire State is subject to the bigotry and biases of the people. Would slavery have ever been abolished if the decision was left in the hands of the people and not the elected officials? I believe that it would have taken a lot more time. The Constitution is not inflexible but it is certainly not subject to every whim and passion of the times. There are certain rights that are inalienable and nobody has the power to take them away not even if a majority of people vote to do so.
In McCulloch v. Maryland the Supreme Court declared that laws that are “appropriate…, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” McCulloch v. Maryland, 17 U.S. 316, 421 (1891). This proposition does not depend on who enacted the law or the process by which it was passed. Simply stated, all laws must comply with the Constitution even those brought about by the people. If this were not the case the Constitution would become meaningless and the minority in this country would be subject to the desires of the majority. Clearly this is not the intention of the founders.
I believe that this does not infringe on Lincoln’s government “by the people.” Few would argue that Lincoln meant only “the majority of people” when he uttered those famous lines. However, if courts were estopped from reviewing legislation or constitutional changes that were voted on directly by the people this would be the practical effect. A law that is discriminatory is not made less so simply because it is voted on by the people. There is clearly a majority of Californians (that voted this November) who want to deny the right to marry to a specific class of people. This is not constitutional and should be as open as every other piece of legislation to review by the courts of this state and this nation.
It is no wonder that such direct democratic devices are unpopular throughout the world. Our system is an experiment in progress and we must take heed of the mistakes of the past both in ours and other democracies. Allowing the “mob” to decide who gets what rights is a recipe for disaster and will only serve to further polarize our society and suppress those in the minority. Involvement in the democratic process is a good thing and should be encouraged but at what cost. It is best to let some decisions be made by those who are best equipped to make them, those who know the limits and boundaries of the Constitution. True, politicians are often petty and partisan but they understand that you cannot benefit one segment of society to the detriment of another and they understand that the Supreme Court is always there keeping a watchful eye on them. A law is no more constitutional simply because it was voted on directly by the people.
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