We the People
I know most of you read this in an RSS reader, so click on the link. Read it on my blog.
At the top of my blog is an image of the United States Constitution. It’s been there for about three years now. Sometimes I think about redesigning, and changing it. But I think it’s a solid reminder.
Our Constitution starts out “We the people of the United States…” It’s a document that our forefathers wrote, that the people of the United States accepted, and that was made by us. Our forefathers understood that the people should run government. Instead it seems we have government running people.
Or worse yet people encouraging government to run our lives. While I’m sure we can point to many examples of government trying to run our lives, today I’m focusing on the efforts to overturn Proposition 8 in California. It was sparked by this Google Blog posting. Google is supporting the case to have the Courts overturn the will of the people of California.
By nearly 600,000 votes (link is .pdf) the people in California voted in favor of Proposition 8. The Constitution of California was amended. If you want to change it, have another ballot question. The courts should not overturn the will of the people, and throw out a Constitutional Amendment.
The current issue before the courts is not an issue over “basic rights”. It’s an issue about if the people still control the government, or if the government rules over the people.
So to Google I say: by challenging the will of the people you are not fighting for basic rights, you are fighting for bigger government that controls its citizens. You are fighting for a government that can exert its will on the people no matter what. That is not the freedom that is the hallmark of the United States of America.
(Note: I’m not arguing for or against Prop 8 here. I’m arguing that the people passed it, and the Constitution was amended. A court cannot simply throw out a Constitutional Amendment.)
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That is right on. The people setup the government and are the ones who can change it. I don’t know all the procedures in government, but I would have thought that the courts would have rejected the proposal before it was put on the ballot if it was unconstitutional. Now that the measure is passed, legally, don’t the courts have to abide by it?
Comment by BGerdin — January 16, 2009 @ 12:25 pm
You bring up a good point Austin. I need to ponder this.
Comment by Hannah — January 16, 2009 @ 4:14 pm
[...] [To Google] “…by challenging the will of the people you are not fighting for basic rights, you are fighting for bigger government that controls its citizens. You are fighting for a government that can exert its will on the people no matter what. That is not the freedom that is the hallmark of the United States of America.” Source: blog.bleaus.net [...]
Pingback by Zoho, Famundo, Flock and Weaning Off of Google | Scott's Soapbox — February 11, 2009 @ 3:30 pm
Austin, I’m going to have to respectfully disagree with you on this point.
Your post uses text from the Federal constitution but then you apply it to California’s state constitution which seems like apples and oranges (some states constitutions have drastically different structures and frequency of updates when contrasted with the US’s constitution, see Alabama’s constitution as an example (it’s the states 6th constitution and has 798 amendments to date)).
That aside, assuming we view California’s state constitution with the same view that we apply to the federal constitution the current situation in regards to prop 8 seems like a textbook example of separation of power. The citizens of California passed a constitutional amendment by popular vote but a constitutional amendment should not be able to violate existing civil rights. Isn’t the purpose of the judicial branch to render final judgment on whether laws are unconstitutional?
Categorically I would not want to live in a country where a simple majority could deny a minority a basic right otherwise guaranteed them by existing laws and the constitution.
I don’t think this is a case of the government ruling the people but rather a branch of the government doing the job mandated it by the people, which are to defend the basic rights of the minority from the prevailing opinion, at that moment, of the majority.
I think a very apt parallel is to look at the Supreme Court case of Loving v. Virginia wherein SCOTUS declared Virginia’s law barring inter-racial marriage (more specifically, non-whites marrying whites). That is a clear case where the majority’s personal beliefs had lead to laws being passed that violated the rights of the minority and the judicial branch stepping in to stop said violation.
On the subject of this being a basic rights argument, I believe that is a separate discussion from whether or not the judicial branch in California has the right to review the constitutionality of prop 8. I think that the judicial branch has the right and, to go a step further, the obligation to review prop 8, given the propositions significant impact and the fact that it is removing an existing right, which is a pretty bold thing to do in my opinion.
Comment by Joe Buck — February 11, 2009 @ 7:47 pm
In reference to Brad’s comment, in CA, from my understanding, all that is required to get an amendment on the ballot is a certain number of signatures. There was a legal challenge brought which sought to remove prop 8 prior to the election but the judiciary rejected the motion without comment. This portion of the wikipedia article states “As a general rule, it is improper for courts to adjudicate pre-election challenges to a measure’s substantive validity”.
So, I do not think it’s safe to assume a) that an amendment’s legality can be challenged prior to the vote and b) that an amendment’s passage means that it has been vetted from a legal standpoint. I’d say it all comes down to the law of the state in question.
Comment by Joe Buck — February 11, 2009 @ 7:55 pm
Joe Buck, So we’ll set aside the debate if this is an apples to oranges comparison.
The Judicial Branch has granted itself the power of Judicial Review. We could have a fun debate on whether or not that should be, but we’ll set that aside for the moment.
Prop 8 was more than just a law. It was a Constitutional Amendment. If the constitution is Amended then whatever was amended to it is constitutional.
If Prop 8 was simply a law then it would be well within the realm of the California Supreme Court to review and overturn it. They overturned the law, which is why Prop 8 was put on the ballot in the first place. Prop 8 was very similar to the Amendments 30 other states have approved to their Constitution.
You make a good argument, but I think you’re arguing from the mindset that Prop 8 was simply a law. Because it was a Constitutional Amendment it’s taken out of the jurisdiction of the courts.
Granted the case that Google makes supports is that it was a Constitutional Revision, and not a Constitutional Amendment. From everything I’ve read and seen it was an Amendment, and the burden of proof lies on the group trying to overturn it. And according to the California S.O.S. it was a Constitutional Amendment. (http://www.voterguide.sos.ca.gov/title-sum/prop8-title-sum.htm)
Of course there is the case of Baker v. Nelson 409 U.S. 810 (1972) where the SCOTUS effectively ruled “in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex” and therefore there is no right to same-sex marriage.
So the states that have allowed same sex marriage are not following the law of the land.
Comment by bleaus — February 12, 2009 @ 4:58 pm
The reference to Loving was more so to point out that it has been appropriate for the judicial branch to strike down laws. You aptly point out that this was a constitutional change and not a law but given the mutability and ease with which CA’s constitution can be modified (a simple popular majority), the sacrosanctness of it seems questionable from a logical standpoint.
Brad suggested, and aptly so, that the constitutionality of prop 8 should have been decided prior to the vote on it. I think that would’ve made this a lot easier, but the judiciary opted to note really weigh-in on if prop 8 was a violation of civil rights.
So, the prop goes on the ballot, passes by a simple majority, and is now law. At what point in that process does the judiciary have an opportunity to review this for validity given pre-existing law? It would appear not prior to the vote, so it must, logically, come after.
Now as to whether this was a revision or amendment, that is an unclear question. The delineation seems to be in the phrase “substantial change to the entire constitution, rather than … a less extensive change in one or more of its provisions”. One could argue that marriage affects inheritance, property rights and other aspects and is therefore a substantial change, but I think that point is at least up for discussion.
Speaking in broad strokes, I do not believe that a constitutional alteration, of any type, should be allowed which violates basic rights. Without arguing whether this bill does or does not violate said rights I think that we can state that there are a decent number of people who believe prop 8 is a violation of basic rights. Given a concern has been raised about a basic rights violation there should be an avenue for a judgment by a qualified governing body on this question.
The current situation in CA in regards to prop 8 seems to be the following:
A minimum number of signatures ( 8% of the number of voters in the last gubernatorial election) were collected to get it on the ballet, a question of if it should be on the ballot was effectively punted on, the measure passed by a < 5% majority and now it is law.
To say that a simple majority can pass a law that is above review seems unwise. Populist sentiment can often give rise to short-term thinking and the common person doesn’t have a background in constitutional law (us included) so we don’t have a basis on which to judge a proposed amendment’s constitutionality. In a way I’d say we need the judiciary to save us from ourselves (or at least we may, given a conceivable situation).
There’s always the option of the legislative branch to enact a law to the same effect as Prop 8, citing the vote as a mandate from the people so I don’t think this is a case of the judiciary being a permanent roadblock to the will of the people.
In regards to your citing of Baker v. Nelson, I think your attribution of the above quote to SCOTUS isn’t quite correct(assuming wikipedia is to be believed). That quote came from the opinion of the MN supreme court(
citation here . The plaintiffs appealed to SCOTUS but the appeal was dismissed “for want of a substantial federal question.” I would contend that Baker v Nelson is the prevailing opinion in Minnesota and that the Supreme court considers marriage laws to be a state level issue. This means that states are not violating the law of the land by allowing same sex marriage but are merely governing themselves.
Comment by Joe Buck — February 12, 2009 @ 6:26 pm
More or less the rest of my comment can be summed up in this: Just because a process can be seen as too easy to achieve does not negate the provisions enacted which followed the process.
More in-depth:
How can a Constitutional Amendment be unconstitutional? The whole reason they’re trying to amend the Constitution is to make something Constitutional (legal) that was previously unconstitutional. If the Constitution is amended to read, as Prop 8 did, “Only marriage between a man and a woman is valid or recognized in California” then that’s that. The people voted and democracy ran its course.
The law of the land, which is the Constitution, is what the Supreme Court uses as its basis for deciding cases.
We could pass a Constitutional Amendment repealing the 1st Amendment or the 2nd Amendment, or demanding government paid abortions, saying punting a koala is punishable by death, or any number of ridiculous things. While I may not agree with any of them, and they may go against previous precedents, if it’s in the Constitution it’s the law of the land.
The United States allowed prohibition in its Constitution. It was later repealed. It’s quite possible Prop 8 will be repealed later as well. If it is, it needs to be done by the people and not the courts.
Putting aside what any Constitutional Amendment does, something in the Constitution cannot be unconstitutional. It may go against previous legal precedent, but once it’s in the Constitution it’s legal and it’s the law of the land.
(Prop 8 was in response to the CA Supreme Court throwing out the old law the Legislature had enacted against same-sex marriage. So I don’t think the legislative branch has an option.)
The Minnesota Constitution can be amended by a simple majority as well. It’d be interesting to find the requirements of all the states to find out how easy it is to amend them.
Giving the power to change the Constitution to 50% +1 may truly be unwise. (Side note: Churchill said “Democracy is the worst form of government except for all those others that have been tried.” He might be on to something.) Maybe that needs to be changed. You could start the initiative to change it to 66% or even 60%. But I don’t believe we need the Judges to save us from ourselves. That mindset could go against the basic freedoms our country was formed with. I don’t need the government telling me to wear my seatbelt, not to drink beer, or not to smoke.
From what I’ve read the California Supreme Court followed its precedent of not reviewing initiative measures. From the Costa v. Superior Court (2006): “it is usually more appropriate to review constitutional and other challenges to ballot propositions or initiative measures after an election rather than to disrupt the electoral process by preventing the exercise of the people’s franchise, in the absence of some clear showing of invalidity.” In my opinion that’s not really punting the issue.
I’m all for state rights. Let’s leave it up to the individual states to decide these laws. The 10th Amendment is great!
Comment by bleaus — February 13, 2009 @ 2:11 pm
Austin, a few things.
1) I laughed when I saw the “punting a koala” reference. That’s rad
2) I really appreciate the collegial nature of our back and forth. Even amongst friends, things like this can get heated. I’m glad we’ve avoided that.
3) You make a lot of good points and I concede the point that I was arguing “is this a good idea” in place of “is this the current legal framework” which isn’t really relevant to the point at hand. My apologies for that tangent and thank you for calling me out.
In regards to the courts not reviewing the case prior to the vote, I shouldn’t have used the term punting because it’s move vague than I intended. What I meant is that the court has traditionally opted to sort the legality of propositions after the vote, as is substantiated by the Costa v Superior Court quote you posted. I was trying to contrast that precedent with the earlier comment that the legality of this should have been sorted out. I still contend that my point was valid, that since the judiciary opted to not weigh- in prior to the vote, shouldn’t they be able to weight-in after the vote?
As to your statement in regards to prohibition, I agree that amendments can be repealed so there is that precedent of things being undone without the judiciary intervening.
I think my argument would have been better served if I’d used the phrase “violation of rights” as opposed to “unconstitutional”. If an amendment to the constitution is by definition constitutional then what part does basic rights play in? If an initiative to remove an established right of a minority group were passed, who would be in charge of undoing that? Let’s say that a law passed revoking the right for women to own land or vote, what category would that fall into? Constitutional, since it’s by definition now part of the state constitution, but in violate of basic rights? Who remedies this other than the people (this they have spoken via their vote)?
Oh, and I’m down with the Churchill but I doubt that his quote was intended to be a synonym for the ability of the majority to impose their will, unfettered, on the minority within democratic nations. Because, to use a quote, “none of us is dumb as all of us” or, via some hand-waving math, the majority.
Comment by Joe Buck — February 16, 2009 @ 12:45 pm
Er replace “law was passed revoking” with constitutional amendment in the above post. I’m trying to keep those two straight as there is a difference. Whoops
Comment by Joe Buck — February 16, 2009 @ 12:46 pm