California Courts, Gays, and the Tyranny of the Minority

Can it be that with Proposition 8, there are bigger issues at stake than just what gays would have us think?

In a previous post, Anon left a comment that deserves another full posting, rather than a comment. Anon was concerned with the problem of the tyranny of the majority. Here's my response:

Yes, of course I've heard of the tyranny of the majority. The idea goes back to Plato, but for the purposes of the US, the most influential discussion comes from the Federalist Papers, especially with Madison's Federalist Number 10 where he talks about factions (special interests).

Madison's solution to factions, which included both the problem of the majority and of the minority, was to argue in favor of representatives voting for the will of the people. It was his best guess of a means to reduce the effects of factions. Hence, we have a representative form of government. We elect representatives to represent us and our desires. They, in turn, pass laws, ostensibly to express the will of the people.

Here's one problem. The representatives (in this case the California State Legislature) refused to consider the question of preserving marriage, according to the will of the people. And, instead of enacting their legislative duties, turned their power over to the court to decide the will of the people. That is why I call the California legislature a bunch of gutless wonders.

Our system of government was designed to have the representatives make the laws and represent the people. I strongly object to the courts taking over the legislative process, or, in this case, being handed the power to take over the legislative process by a bunch of saps in the California legislature who would rather preserve their reelection than make a clear decision.

With regard to ballot initiatives (the way Prop 8 was placed on the ballot last year), it was the progressive left who thought that the democratic principle should be expressed in the hands of the people by direct vote, rather than waiting on the gutless representatives to get around to passing necessary laws. The liberal idea was to be able to pass laws and amend the state constitution to better reflect the will of the people. The liberals had gotten fed up with the legislative process.

Well, the ballot initiative has come back to bite the liberals on the butt. Proposition 8 passed, to their shock and horror.

So what do the liberal gay activists all do? How do they react? Do they accept the ballot initiative system they, themselves helped to create? Heck no. They hijack their own ballot initiative system and press the courts to overturn a legally adopted change to the constitution.

Anon then goes on to ask: "Do you believe that if put to a democratic vote, abolition of slavery would have passed in 1863? Or the 19th Amendment in 1920? Brown v. Board of Education?"

Well, in 1863, the US was fighting the Civil War to settle, in part, the very question of slavery. The democratic process had broken and we were at war. But there were good men who stood up for the rights of Blacks in the US and succeeded in making the Civil War count for something - establishing the principle that life and liberty are fundamental rights here in the US. Congress did indeed succeed in abolishing slavery by passing the 13th Amendment in 1865. (All done without the court's help, I might add.)

The 19th Amendment, extending voting rights to women, was also passed without the court's help. Voting rights for women had already been extended in many states (beginning with Colorado, Utah and Idaho). The amendment was passed by the US Congress in 1919 and ratified by enough states in 1920 to amend the US Constitution.

Brown v. the Board of education was a landmark decision that overturned Plessy v. Ferguson, a bad court decision in the first place. Here is a case where the court overturned bad laws (such as Jim Crow laws) which were clearly a violation of the 14th Amendment's application of equal protection.

All these examples basically refer to cases where the courts didn't do so well, but where the democratic principle did.

If we forget the topic of Proposition 8, we do need to understand that, in California, the democratic principle was properly exercised. Proposition 8 passed within a legal, democratic system. But now some people are unhappy with the result of the vote. So what do they do? Do they use the democratic system to change the law? Do they call on their representatives to enact new laws?

No.

Instead those who oppose the new amendment circumvent the democratic system and take power away from the people and hand it to a few individuals in the court to try and affect changes. The liberals in California have fractured the democratic process and have created another kind of tyranny.