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The United States Is Not a Democracy
It's a Constitutional Republic
It's a Constitutional Republic
Thank whatever God, or lack thereof, you choose to thank. (Oh and you can thank the Framers for that constitutional right as well.)
I read a lot of passionate posts about the California Supreme Court's decision upholding Proposition 8. They were well-written, compelling, and in large part, I agree. Well, let's be clear because exact language is important. I disagree that the California Supreme Court's ruling is incorrect. On the procedural issue before that court, I think the justices ruled correctly.
On the larger issue, the underlying social and political, issue, I personally believe that discriminating against people by limiting their access to State-sanctioned marriage based on the sex of partners in a marriage is both morally wrong and violates the Equal Protection Clause of the United States Constitution.
The problem with our legal system - and with the attacks on the California decision - is that issues are rarely presented to courts that directly or that succinctly. Courts are bound, and so they should be, to follow the laws of the jurisdiction that they are sworn to uphold.
What was the legal issue before the California Supreme Court and why did they rule the way they did?
*Disclaimer - I am not a seasoned legal analyst. You will be able to find hundreds of more scholarly, better informed, and better reasoned reviews of this complicated ruling.
**Disclaimer number 2 - I read the damn opinion. Before you even think about yelling at me in the comments, you better do the same. Have fun. It's really freaking long. Polite argument, dissension and discussion in the comments is always welcome, regardless of whether you can stomach a 200 page court opinion.
The Court considered whether the procedural method used to pass Proposition 8 and amend the California Constitution was allowable under California law. The Court answered yes. Despite the rise and fall of Rome length of the damn thing, it didn't address much more. The Constitution of California allows amendment by ratification of a properly proposed amendment approved by a majority of California voters, even if that amendment narrows a fundamental right.
California's voters used a permissible method of amending California's Constitution.
Does it suck? (legal term) Why yes, in my opinion, it does. Not the court or its ruling on this issue. The "it" that sucks is this: In a legal system like ours, constitutions are intended to be very nearly absolute. They ought to embody rights, procedures and power structures that we hold so very dear, so very inviolate, that they can not be casually changed. These rights, these procedures, these systematic divisions of power ought not be subject to the rule of the simple majority. Because the simple majority can be wrong, cruel, discriminatory and even evil (many, many evil laws and evil leaders have had popular support, all over the world).
The Federal Constitution, of We the People fame, has, in large part, withstood the test of time in this regard. With some interpretive disasters, we have held these truths to be self-evident, we have endowed our people with certain INALIENABLE rights and we have, god forgive us for the missteps along the way, upheld them. It is hard, some might say impossible, to amend the Federal Constitution and there is a reason for that. It is intended to protect the minority against the majority.
That's the foundation of a constitutional republic. It's not a simple democracy, nor was it ever intended to be. The majority does not rule. The majority is limited by the Constitution. The government is limited by the Constitution. And the Constitution requires (should require, in California's case) a whole lot more than a majority vote to change.
Because California's Constitution is too easy to change, the fundamental rights of Californians under State law are vulnerable to the will of the majority.
That is what is frightening. That's the take home lesson. Constitutions can be changed. Though the process is onerous, the Federal Constitutional can also be changed. We should all, every single one of us, regardless of our personal views on marriage, regardless of our religious convictions, from the most conservative Christian to the most liberal agnostic, and every combination in between, be against amending any constitution, but in particular the United States Constitution to discriminate against a group of people. Because we are all, each and every one of us, protected by the fundamental rights set forth in that document, which include equal protection under the law. None of us knows when we will be in the minority - none of us. A fundamental right is only as strong, only as stable, as the weakest voice it protects.
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First they came for the socialists, and I did not speak out -- because I was not a socialist. Then they came for the trade unionists, and I did not speak out -- because I was not a trade unionist. Then they came for the Jews, and I did not speak out -- because I was not a Jew. Then they came for me -- and there was no one left to speak for me. --Pastor Martin Niemoller
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