Anti-gay initiatives: exercising a tyranny of the majority
Posted on December 26, 2006
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Updated 12/28/2006 with some additional thoughts and clarifications.
The use of the democratic initiative process has gotten out of hand. The history of the movement is pretty easy to understand. When lawmakers abdicate their responsibility, failing to legislate when legislation is needed, well-meaning people are moved to take the matter to the people.
The problem is that the states have gotten some pretty rotten laws and constitutional amendments through these methods. For whatever reason some well-financed special interests have been able to fund both the initiative process and all the media buys needed to get measures to pass. Sometimes the special interests are industry groups; sometimes they are majority population groups.
It’s probably not quite fair to liken the process to mob rule, as characterized in reruns of “Gunsmoke.” The plot was repeated often in TV westerns: self-righteous townsfolk would storm the jail to try and hang the murderer inside who would later be shown to be innocent. Those kinds of lynchings may have actually happened in the old West, but clearly the TV moral was more about sins of the old South, though not exclusive to the old South. Initiatives are not mob murder, but they seem to be designed to play on mob-think (or non-think).
In the Westerns, the sheriff would always save the day (and the prisoner). He would be the leader who, though requiring the support of the townsfolk to do his job, would have the cooler head. He’d see the larger picture or take the longer view.
So it is in the case of representative government. The state legislatures are closest and theoretically most responsive to their local constituents. Folks who have a desire to be connected to government will likely have access to their state legislators, and state laws will reflect local influences. One hopes even state law will be moderated somewhat by legislators’ needs to work together so that a state’s Eastern interests should not be able to overwhelm the interests of their neighbors across the state.
We’re directly represented by our U.S. House Reps. and U.S. Senators as well, but again, each level has a larger pool of constituents to be considered, so that benefit to one group is not a detriment to another. The U.S. Congress also has a duty to uphold the U.S. Constitution, a document designed to require us to take the long view of the affect of laws.
James Madison hoped, when writing the tenth of the Federalist Papers, that a representative democracy (or republic) would help guard against factions (which we might call “special interests”), saying:
A pure democracy can admit no cure for the mischiefs of faction. A common passion or interest will be felt by a majority, and there is nothing to check the inducements to sacrifice the weaker party. Hence it is, that democracies have ever been found incompatible with personal security or the rights of property; and have, in general, been as short in their lives as they have been violent in their deaths.
Thus with initiative processes you have the very ripe potential for a tyranny of the majority. With a pure democracy, where citizens vote on every issue, each can vote his or her own interest without ever taking the larger view, or even the needs and situation of a neighbor into account.
Certainly this has happened in the case of initiatives to strip gays and lesbians of their civil rights.
The reason this can happen is that gay folks can never attain a majority. In order to have any rights or protections of law, we must rely on being able to persuade a large portion of the population that our interests are the same as theirs. That can be pretty tough to do when you have a concerted effort from within the majority seeking to pass laws that first remove your rights and further say you have no right to seek remedy.
This is way different from conservatives or Libertarians feeling oppressed by a thin Democratic majority in congress. In their case they do have the opportunity to become the majority if they can persuade enough people to follow them or construct a large enough tent to include more people.
Historically the courts have been the last resort when minorities could get no help from the electorate. I always understood the Supreme Court was doing it’s job correctly when it sought to treat all citizens equally. I still believe that is their role. It’s pretty clear from Madison’s writing that the founders had an interest in circumventing the worst of the failures of pure democracy. When the SCOTUS has created protections for African Americans clearly they were protecting a minority group who has no likelihood of becoming the majority.
More interesting are protections for Women. I’ll argue that such protections are just with my final breath. But clearly, with women, we’re not having a discussion about numbers. Woman simply lack the power supported by their numbers — so something else is in play. I’ll leave the legal arguments and case law to the more qualified. It seems likely the protections derive in part from equal protection in the 14th amendment. The question that arises is why were women unable to get the protections they needed from their representatives or the electorate? If glbt people similarly lack the ability to find remedies, who’s place is it to step up?
I have no ideas on how to reverse the trend toward more and more ballot questions. It seems clear that they have a place. Given the political realities, gays and lesbians have long had to seek change by winning hearts and minds. It’s a good thing to do for its own sake. For life, liberty, and pursuit of happiness kinds of issues there should be no question.
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[…] failing in the California’s long history of experimenting with direct democracy. Earlier I gave my opinion on the danger of the initiative process: The problem is that the states have gotten some pretty […]
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