Thursday, September 08, 2005

The People Have Spoken

Considering the cultural landscape, it should come as no surprise that Arnold plans to veto the gay marriage bill. His press secretary said: “We cannot have a system where the people vote and the Legislature derails that vote” Legally speaking, that is correct. This according to the CA Secretary of State (pdf)

Unless the text of an initiative measure states otherwise, an approved initiative goes into effect the day after the election and is not subject to a Governor's veto, nor may it be amended or repealed by the Legislature without a vote of approval of the electors. Should two conflicting measures be approved by voters in a given election, the measure receiving the largest affirmative vote will prevail.

As it happens, a couple of distinguished LLPers have already written about this. Both Eric Cowperthwait and Brad Warbiany have been residents of CA, so they have first-hand knowledge of the political process in the The Golden State.

Before I get into my thoughts on this issue, I want to point out that Brad, Eric and I are in agreement that the government ought not to be empowered to determine which consenting adults may or may not marry. Such decisions are deeply personal and the province of individuals…not that of society.

Eric’s take on the current politicking is somewhat ambivalent:
I also believe that the California Legislature is completely unrepresentative of the people, due to the gerrymandering done in 2000. So, I find myself sympathizing with Schwarzenegger's position, even as I think it just holds the status quo, which is the wrong place to be on this issue. Ugh. […]

The legislature should not be trying to override that ballot proposition. That position has nothing to do with how I, personally, feel on the topic.

That’s a perfectly defensible position in my view. But while there’s no disputing the letter of the law—with respect to ballot initiatives in CA—I think that the spirit of ‘direct elections’ is misguided and potentially dangerous. I’ll explain why in a bit.

Brad argues in favor of the ballot initiative, as a means of limiting the power of the State Legislature.
Arnold Schwarzenegger is completely right to veto this bill. Simply put, the legislature has decided that it has the right to completely ignore the expressed will of the people. Whatever you think of California’s problems, the ballot initiative process is a way for the people themselves to be a check on the legislature. In this country, as in California, we hold that supreme power rests in the people themselves, not in government. We control them, not the other way around.

It seems to me that there are two distinct issues here that have been mingled into one larger principle. On one hand there is the immutable fact that this nation was founded upon the idea that the government is subservient to the citizenry. On another hand, there is the idea that the will of the people is preeminent. The two are mutually exclusive. The government is constrained by the unalienable rights of the individual, which theoretically constitutes the ultimate check on Legislators, Executives and Courts alike. Conversely, the whim of a given majority is fickle and cannot be relied upon to regard the sanctity of natural rights.
California is a state that allows the use of direct democracy for issues that they do not trust their representatives to decide. This doesn’t always mean the people make the “right” choice, but their choice should, in all cases, supercede those of the California legislature. They may be subject to being overturned by the US supreme court, or perhaps California courts, if their will expressly violates the US or California Constitution.

Again, there are two separate issues at play: Judicial oversight and direct democracy. It goes without saying that a fair and equitable judicial system is essential in a constitutional republic. When functioning properly, the judiciary ensures fidelity to the constitution and indeed the rule of law, which exists to protect individual rights in the context of pluralism.

For obvious reasons, direct democracy is a natural enemy of individual rights. I’m not suggesting that Brad holds the opposing view, but I do think that it’s unwise to down-play the negatives of democracy, even when justifiably criticizing a Legislature that abuses its power. The best mechanism for correcting poor representation is the general election; the remedy for bad legislation is an unequivocal congressional or judicial repeal. Is that a perfect system? No, but the will of the people is rarely rational and portends disastrous and far-reaching consequences.

Update: Brad has retracted a portion of the post that I addressed above. However, the points with which I take issue have been left to stand. Brad’s disclaimer: ”Note: The entire below post is wrong. It is a brilliantly valid, well established argument, but is based upon a faulty premise, that being that the Assembly Bill in question would repeal Prop 22.” Be sure to read both Eric’s and Brad’s posts.