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This page contains a single entry from the blog posted on March 5, 2004 4:12 PM. The previous post in this blog was Focus group. The next post in this blog is Fondue-forked tongue. Many more can be found on the main index page or by looking through the archives.

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Friday, March 5, 2004

Republic vs. democracy (again)

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.

Paul Nickell of Worldwide Pablo fame echoes these thoughts today when he writes:
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.

Comments (19)

But the law runs in both directions, doesn't it? At which end should the public dialogue happen? It seems like an argument could be made (and I'm not actually making it--I'd like to know your thoughts) that ensuring marriages to all citizens is the default setting on constitutional interpretation. If you want to remove those rights, that's when the public discourse happens.

There are a lot of other issues in play here, but I'm interested to know how the legal angle should be interpreted (in your view).

I'm not talking about the secrecy/dialogue issue now. That one's pretty much a done deal. I will note, however, that gay marriage was not the status quo as of this past Monday. To legalize it was, at the very least, a major, polarizing change in interpretation of existing rights. I'm not ashamed to say, yes, the public should have had the benefit of a public debate before that fundamental change was made.

This post is about something different (or at least, it's trying to be). I'm talking about folks saying, "Civil rights shouldn't be voted on." Sorry, but you can't have a democracy -- even a republican democracy -- without the people getting to vote on these things, directly or indirectly, at some point. Otherwise, who defines the rights? You? Me? Randy? WWP? The Pope? The ayatollah?

Is that what happened in the south? The people got to vote directly about racial civil liberties? Uh-huh, that's what I thought.

Agreed: The secrecy/dialogue issue is pretty much behind us. It may haunt us, but it's time to move on. May we all learn something constructive from it.

As for civil rights: Seems to WWP that civil rights really don't stem from anywhere, not from public affirmations, not from constitutions, not from Congressional acts, not from well-meaning county commissions. No, they are "inalienable," they're already there, they've always existed -- it's simply our task to name them, and then claim them. At the risk of introducing the added controversy of mixing church and state, civil rights stem from the "Creator," as each of us understands that concept, so nobly advanced by the Declaration's signers.

Simply stated: Testing the fate of civil rights before the vagaries of popular appeal does serious injury to the American experiment.

Are these not the very reasons we are united against the Patriot Act and the other dangerous invasions of liberty advanced by the current administration? Have we drifted apart so?

Kona: If a majority of the states did not agree with racial integration, they could amend the U.S. Constitution so as to make racial discrimination legal once again. In that sense, yes, it's up for a public vote. Always has been, and it still is today. Which is why you don't want George Bush calling a new constitutional convention.

WWP: "civil rights stem from the 'Creator,' as each of us understands that concept." Given how differently the Creator speaks to, say, you and Lon Mabon, that's not practical. He says God's on his side, too. To keep the peace, it comes down to majority rule, subject to the constitutions.

As I said a month ago, maybe it's time to change Oregon's initiative system. Until it's changed, though, you have to live with it.

Agreed: It is worth considering a change to the Oregon initiative system. 'Nuf said.

I cannot help but wonder how the form and tone of the debate would change if a Portland or San Francisco mayor, instead of interpreting the Fourteenth Amendment's (and the state's equivalents) equal protection clause, decided to interpret the Second Amendment and began handing out gun permits to all comers.

Sorry, but you can't have a democracy -- even a republican democracy -- without the people getting to vote on these things, directly or indirectly, at some point. Otherwise, who defines the rights?

The US and Oregon Consitution define these rights. We don't rule by tyranny of the majority. This is one of the main issues confronting Iraq right now. If majorities always got their way, we would still have all those horrible things the majority wanted--humans as property, no interracial marriage, etc.

Jeff, you've missed the whole point. Constitutions can be amended any time.

JB- Yes, I hear you. I guess it is just my hope that people think long and hard before f**king with something so...holy. That was the only word that came to mind.

Like base code- I make a copy and then test new code, kick it, QA it, think about it's impact on the future, integration feasibility, etc. before I ever, ever, ever muck with the original.

PRS- ha! I keeel you with my married tax filing. Hwah!

Jeff, you've missed the whole point.

Hmm--seems that door swings both ways, too.

"We hold these truths to be self-evident, that all men are created equal ..."
That pretty much sums it up for me. People can change the Constitution as they wish, but it that doesn't change the fact that this country was founded on the idea that the law, however it is defined by the governed, must apply equally to everyone.
Yes, people have the ability to amend the state or federal Constitution to suit their own purposes, but if they do it in a way that discriminates against people, then they need to stop calling this place "America," because it will be something different. Something less. Far less.

I don't disagree with that at all. But some of the commentators this week seem to have lost sight of the fact that the system we live under allows amendment of the constitutions, including here in Oregon by popular vote.

If hateful people can convince other hateful people and form a majority, they can have their way. The system that the Founding Fathers finally came up with does not actually prevent that, although it aspires to.

Historical note: this nation wasn't founded on the idea of equality, and neither was Oregon. Until 1926, the Oregon constitution prohibited blacks from moving to Oregon. Until 1927 it prohibited blacks, persons of mixed race, and persons of Chinese descent from voting. And for purposes of the census, the United States constitution counted slaves as three-fifths of a person. The states grant civil equality today mainly because Hugo Black found the 14th Amendment to be elastic. In short, it wasn't the federal and state constitutions that protected civil rights, it was the amendments. And so far the only amendment that took away a right was the 18th, imposing prohibition.

Isaac,

You might want to consider adding the 16th Amendment to the short list of constitutional amendments which took away a right.

(Although, I'll wager that most of the contributors here take a dim view of the former right to NOT be federally taxed for producing income).

The institution of marriage pre-dates the Oregon state constitution, the US constitution, and the concept of law. During that long history, marriage has always been between one man and one woman.

Sorry, but you can't have a democracy -- even a republican democracy -- without the people getting to vote on these things, directly or indirectly, at some point. Otherwise, who defines the rights?

I agree with that point and I also share similar concern(s).

On the one hand, I want people to vote, because that is the basic principle of democracy.

On the other hand, I worry about the “hateful majority” who once legalized slavery and voted for anti-miscegenation statutes.

But given its legal history, I am confident that most of the people in this nation are fair and open-minded. It might take some time, but I am sure that gay couples will be afforded the basic civil rights they deserve.

Here, Here Yi Hu I completely agree with you.

What happened to the whole "Pursuit of Happiness" thing. It has always been my impression that your rights extend out until they start to interfer with my rights. How does a gay couple's marriage interfer with my life at all? It is all about control and who has it. Why would you want anyone to control your life this way, let alone the government or "ultra-religious"?

"Change the initiative system" _how_, exactly? I moved to Oregon in 1991 from Virginia. They had no initiative system. I LIKE living in a state where the citizens can make law directly, even--perhaps even especially--without the "help" of legislators. Or where they can slap the legislators across the face with a metaphorical glove and say, "we said no, and we MEAN it" when they, for instance, repeal a tax measure.

Frankly, I worry more about stupidity and venality in the legislature than amongst the population as a whole. An initiative has to get a hell of a lot more votes to be enacted than anything the leg does, and initiatives don't get passed in the middle of the night or in tiny, secret meetings.


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