Here we are, for the second time in less than a month, wondering whether Oregon's initiative system is a good thing. In February, the frustrated proponents of the state income tax increase, Measure 30, lamented the fact that in Oregon, tax legislation can be overturned by a majority popular vote.
Now some of the same folks, in defense of the Multnomah County commisioners' decision to license gay marriage without public debate, are declaring that civil rights should not be subject to popular vote, either. Last night, Portland City Commissioner Randy Leonard wrote here:
I believe that the initiative/referendum undermines what the drafters of our Constitution envisioned for our system of government. A fair reading of the federalist papers makes it clear that our founding Fathers rejected the concept of a direct "democracy" in favor of a republic.
Their argument, which I adhere to, was that a direct democracy allows for a "tyranny of the majority" that creates fundamental inequities for those in the minority on any given issue.
Should any of the proposed state constitutional amendments now floating around be enacted by the voters, any discussion of gay marriage would be moot. And let this be a lesson about Oregon’s vaunted initiative/referendum/recall scheme, which now stoops to discern civil rights by popular vote, the very “tyranny of the majority” the republican founders feared.
Well, we're back to the 18th Century debate, aren't we? I see the point of both of my friends, but I note that the basic principles of American independence include the proposition that all legitimate power flows from the consent of the governed. And the primary documents to which we consent by living here are the federal and state constitutions.
As a practical matter, all human rights in this country exist only because we have constitutions that guarantee them. The power to interpret those constitutions is supposed to be shared by all three branches of government -- at least two of which are supposed to be democratic. But particular human rights are either in those documents or they aren't: unstated, fundamental, spiritual human rights are not secure unless spelled out in the constitutions.
And as much as it troubles small-r "republicans," those constitutions can be amended. It's much harder to do on the federal level than on the state level in Oregon, but it can be done, and it has been done many times.
So far we have been blessed, in that each round of amendment has expanded the civil rights of minority groups. But that doesn't mean that the door doesn't swing both ways.
Those who believe gay marriage is a basic human right must be prepared to work within the existing constitutional system to make that right secure. Anything else is either hot air or lawlessness.
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