Judicial Activism: Same Sex Marriage And The Aftermath Of Proposition 8
THE FLAWS OF THE INITIATIVE SYSTEM
The current controversy surrounding Proposition 8 exposes the inherent flaws of California’s popular initiative system, which requires only a simple majority to amend the California constitution. In theory, the plebiscite aspect of the popular initiative sounds like a noble, inclusive system. In reality, it undermines the primary design of California as a constitutional republic. A constitution is “an instrument of a permanent and abiding nature” Livermore v. Waite, 102 Cal. 113, 118 (1894), and should not be subjected to the whim of a simple majority.
How many people truly understand the qualitative consequences of their votes? How many read and understand the voter materials they are provided rather than rely on the advertisements that blight the airwaves in election season? And even when a constitutional change seems clear on its face—like Proposition 8 appeared to be—how many of voters comprehend the consequences of their vote in the larger constitutional scheme? Did all Californians who voted “Yes” on Prop 8 understand that they were “modif[ying] one dimension of [the California Equal Protection clause’s] application” (as stated in the Official Proponents of Proposition 8 Intervener’s Opposition Brief, at 23)? Did they even know there was such a thing? Did they comprehend the impact their vote would have on the rights and duties existing between the state and the couples who married in the interim between Marriage Cases and the passage of Prop 8?
In fairness, these issues are yet to be resolved by the California Supreme Court, and as of this date, no one knows how they will be resolved. But our popular initiative system begs the question—do Californians really know what they’re doing with the power they so dearly hold?
Aside from the state’s amendment/reformation distinction, there are no meaningful safeguards for preservation of the foundational principles contained in the state constitution. Currently, there is no requirement for meaningful dialogue, and there is no minimum turnout requirement when the voters pass a constitutional amendment. As evidenced by the Proposition 8 controversy, it appears that even fundamental rights cannot survive in this system. This is not to say that the popular initiative has no place in California—indeed it can be a wonderful and important tool to facilitate a balance of power between the people, their elected representatives, and their judiciary. But the current “majority rules” method is simply not strong enough to protect and preserve our cherished constitutional system.
“And those people should not be listened to who keep saying the voice of the people is the voice of God, since the riotousness of the crowd is always very close to madness.” --Flaccus Albinus Alcuinus, 735-804
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