Monday, August 16, 2010

Towards a more perfect union

I shouldn’t be surprised by some of the letters to the editor of the San Diego Union Tribune that were spawned by the recent federal court decision that ruled Proposition 8 to be unconstitutional, and that its passing by a slim majority of California’s voters deprived gay and lesbian people the rights of due process and equal protection. I shouldn’t be surprised that the authors of these letters that often insist that the ‘will of the people’ has been overridden by a single federal judge, are so full of outrage. Their misguided view of democracy in the United States has its basis in ignorance of the laws of the country and the real power of constitutional democracy as opposed to ‘pure’ democracy which relies on simple majority rule. How easily such ignorance lends itself to smug utterances like, “Majority Rules!”

Didn’t we all learn about these issues somewhere about the 8th grade? Weren’t we taught about what being a republic means? Well, I was. Perhaps not since 1955 or so have these lessons in civics been made clear to a population, some of whom believe that the majority has no responsibility for the welfare of the minority.

I took the trouble to re-read the Constitution of the United States the other day, and while I don’t recommend it for anyone looking for pure entertainment, I do recommend it to anyone interested in why the laws of the land are the way they are. What comes clear upon reading that document is that it took up in the middle of things, in an age when slavery was lawful and protected, when women could not vote, and when a man could become president of the United States if he were either a born citizen, “or a Citizen of the United States at the time of the Adoption of this Constitution.” The framers of the Constitution were well aware that it was not a perfect document, but that the rule of law had to begin somewhere. When the Constitution was ratified, it became a working, almost breathing document, one that could be amended (it was almost immediately), and one that for whatever its faults, åstill guaranteed basic rights to the people of the United States.

Over the two centuries since, we have seen the Constitution abolish slavery, abolish alcohol, establish universal suffrage, abolish its own amendment abolishing alcohol, and among other issues, limit the presidency to two terms. It has historically and consistently moved toward the goal of a more perfect union, establishing a country in which all persons enjoy the same rights of life, liberty, and the pursuit of happiness as the Declaration of Independence has it.

The Constitution has always superceded any attempt to deprive any minority of citizens of their rights, and has trumped elections that sought to do so. Thus, the ruling last week from Judge Walker is entirely within the purview of the Constitutional tradition and its adherence and mindfulness of what is right and just, regardless of what a majority of voters, however slight, might see as their having established some sort of law at the ballot box. In a Constitutional democracy, such must always be the case.

The August 11th paper had a letter to the editor from one Michael S. Hurlburt who makes my point exactly. He says that many among the discontented over the Prop 8 decision are missing “…the recognition that the United States is a constitutional democracy, not a pure democracy. This is at the heart of the form of government that we cherish. James Madison discussed the need to protect the rights of the minority from the tyranny of the majority, which he viewed as presenting similar risks to those of a monarchy.” I for one, would like to shake his hand.

Just as we have in the past managed to repeal unjust laws, some of them ratified by a majority of voters, have recalled elected officials who have betrayed the public trust regardless of their gaining the popular, majority vote, and have by and large insisted on equal rights over everything else, we now can feel that once more the spirit of the US Constitution has righted a grievous wrong, and that that wrong will be rooted out and abolished from every state in the union.

Robert Heylmun

1 comment:

SLF said...

Thanks for this, Robert.

It is useful to remember other examples of cases where the Court has found against 'the will of the voters' and overturned laws against the voters' will.

For example, it wasn't until 1991 that a plurality of Americans approved of inter-racial marriage, despite the Loving v Virginia decision in 1968. One might argue that it would have take even longer, without the Loving decision.

In California, a majority of 65% of voters in 1963 voted forProp14, to overturn the Fair Housing Act. This was the act that said landlords could not use religion, sex, marriage, etc. to deny housing to someone.

Despite this emphatic statement from the voters, Prop 14 was overturned by the Supreme Court.

These are just two additional examples where "the will of the people" is trumped by Constitutional protection of minority rights. It's what separates our republic from a mob.