The Republic of T.

Black. Gay. Father. Vegetarian. Buddhist. Liberal.

The Day Will Come, Pt. 2

This entry is part 2 of 4 in the series the day will come

ii

What is needed is a realization that power without love is reckless and abusive, and love without power is sentimental and anemic. Power at its best is love implementing the demands of justice, and justice at its best is power correcting everything that stands against love.

~

We can no longer afford to worship the god of hate or bow before the altar of retaliation.

~

In the process of gaining our rightful place we must not be guilty of wrongful deeds. Let us not seek to satisfy our thirst for freedom by drinking from the cup of bitterness and hatred.

~ Martin Luther King Jr.

The proponents of Proposition 8 are, of course, pleased with the outcome.

Gay marriage opponents, who in recent months have seen four more states join Massachusetts in extending marriage rights to gays and lesbians, praised the ruling.

“The voters have decided this issue and their views should be respected,” said Andrew P. Pugno, a lawyer for ProtectMarriage.com, the leading group behind the initiative.

Proposition 8 proponents do not plan to challenge the existing gay marriages that were protected by the court, Pugno said.

“We see it as really a minor point in ultimately the will of the people being upheld,” he said.

“The voters have decided,” they’re fond of saying. Or “The voters have spoken.”


The voters have spoken, and having changed their minds they can speak again. That’s the reality of California’s initiative process, and it applies to any state that has ballot initiatives. Nothing is ever final, not even a Supreme Court ruling.

This is a double-edged sword for minorities. Voters can take away a minorities rights by a simple majority in one election, and hand them right back in the next. In the short run this is a boon to marriage equality advocates, if they learn from the mistakes of the previous campaign and start doing effective outreach and advertising now, they can turn the narrow margin of defeat into a margin of victory.

But the initiative process in California will continue to prove a threat to minority civil rights. Because what the majority giveth the majority can taketh away, and give back, and take away again — so long as the definition of justice is whatever the majority wants.

“Might makes right,” is all well and good when that might is on your side. But nothing, especially in a ballot initiative state, is ever decided with any finality. Everything can change, and everything will change. Eventually, everyone will be on the wrong side of that might made right by sheer mass.

As Kip notes, there was something else at stake in the California ruling, and it wasn’t the status of sexual orientation in relation to state laws about discrimination.

It is true, as an axiom, that all political power resides in the people. It is true, as an axiom, that the mob always has the ability to behave like a mob. But these observations are mere matters of unambiguous fact. They are on a par with saying that a person with a gun has the ability to kill. That is a metaphysical statement, not an ethical one — and certainly not a political one.

But such statements, such factual observations, are totally orthogonal to the question of the legitimacy of what “the people” (nee “the mob”) do.

Might does not make right. Neither does majority make right.

Except when it does, which is now the case in California.

The majority rule argument, or the will of the people, is erroneously portrayed in the public conversation as synonymous for what is right in a democratic society.

Having the numbers on one’s side makes them impervious to wrong. Or as law professor Ken Starr argued before the Supreme Court in support of Prop. 8, it is allows for the people to make bad decisions.

With more than seven million votes cast in the November election, the majority consists of a 52%-47% margin. The latest Field poll indicates those in opposition to Prop. 8 hold a slim 48-47 advantage.

Simple majority rule is a binary decision-making process that is unable, and in most cases unwilling, to examine the limits of its own power, which if unchecked can ultimately lead to the tyranny of the majority.

The concept of tyranny of the majority has its roots in Plato’s Republic; it is used in reference to democracies and majority rule. The actual term originated with Alexis de Tocqueville; it is a criticism of any scenario in which decisions made by a majority would place its interests above a minority’s interest to the point that majority will becomes “tyrannical.”

As another blogger wrote, there is no “right” or wrong under absolute majority rule because “right” is only a matter of debate “between equals in power.”

Right, as the world goes, is only in question between equals in power, while the strong do what they can and the weak suffer what they must.

The “strong” in this case being those with greater numbers and the “weak” being those with less. The only “right” is what the majority can do and has the will to do.

Translation: The majority does what they can and the minority suffers what it must.

California isn’t the first time we’ve come across this peculiar conservative desire to live in kind of “state of nature” where “the strong do what they can and the week suffer what they must,” because that as it should be. (In some areas. They’re not consistent in this, at all.) It crops up almost everywhere the question of marriage equality crops up, as was the case in Georgia a few years ago, when a judge truck down the state’s same-sex marriage ban.

Judge Constance C. Russell’s order states: “This Court is well aware that Amendment One enjoyed great public support. However, the test of law is not its popularity. Procedural safeguards such as the single subject rule rarely enjoy popular support. But, ultimately it is those safeguards that preserve our liberties, because they ensure that the actions of government are constrained by the rule of law.”

In other words, the judge is reiterating a core principle of our entire system of government, and not just the justice system: might does not make right. Just because the majority — even the overwhelming majority — wants something doesn’t mean that’s what should happen, or that what the majority wants is even right. We live in a democracy yes, but it is not yet an absolute democracy.

An absolute democracy, which means unlimited majority rule, is incompatible with capitalism and freedom. This is so because capitalism rests on the principle of individual rights. In an absolute democracy, rights would really have no legitimate meaning because they could always be voted away in the next election. When most people think of democracy, they usually mean a constitutionally limited democracy. The function of a limited democracy is to decide who held political power and how that power is specifically exercised, but what that power is should be strictly defined and limited in the constitution. Individual rights would not be subject to vote.

Ours is a democracy that tempers majority rule and protects the rights of minorities because not everything is up for a majority vote. And there’s a pretty good reason why, if you stop to think about it.

It is easy to see why a republic is more desirable than a democracy. In an absolute democracy, the majority has absolute power over every aspect of everyone’s lives. While this might be fine while your group is in the majority, if the majority sways to the other side you are at the mercy of someone else’s whim. The only way to keep everyone secure from the abuse of power is to limit the amount of power that exists in the first place, through the establishment of a republic. Our founders knew this, and not once does the word “democracy” appear in the Constitution.

Maybe this is not something taught in civics classes anymore, or maybe I’m a geek who knows way too much about parliamentary procedure,  but protecting the rights of minorities is an essential requirement of democracy.

Yet majority rule can not be the only expression of “supreme power” in a democracy. If so, as Tocqueville notes above, the majority would too easily tyrannize the minority. Thus, while it is clear that democracy must guarantee the expression of the popular will through majority rule, it is equally clear that it must guarantee that the majority will not abuse use its power to violate the basic and inalienable rights of the minority. For one, a defining characteristic of democracy must be the people’s right to change the majority through elections. This right is the people’s “supreme authority.” The minority, therefore, must have the right to seek to become the majority and possess all the rights necessary to compete fairly in elections—speech, assembly, association, petition—since otherwise the majority would make itself permanent and become a dictatorship. For the majority, ensuring the minority’s rights becomes a matter of self-interest, since it must utilize the same rights when it is in minority to seek to become a majority again. This holds equally true in a multiparty parliamentary democracy, where no party has a majority, since a government must still be formed in coalition by a majority of parliament members.

Democracy therefore requires minority rights equally as it does majority rule. Indeed, as democracy is conceived today, the minority’s rights must be protected no matter how singular or alienated that minority is from the majority society; otherwise, the majority’s rights lose their meaning. In the United States, basic individual liberties are protected through the Bill of Rights, which were drafted by James Madison and adopted in the form of the first 10 amendments to the Constitution. These enumerate the rights that may not be violated by the government, safeguarding—in theory, at least—the rights of any minority against majority tyranny. Today, these rights are considered the essential element of any liberal democracy.

Marriage is a “basic and inalienable right,” or so said the Supreme Court in its Loving v. Virginia ruling, which overturned anti-miscegenation laws.

These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State.

I’m no legal scholar, but the fourteenth amendment has already been mentioned in discussion about challenging the California ruling in the Supreme Court. And while the Court of Loving v. Virginia might not have been able to conceive of same-sex marriage, and thus the court did not qualify its opinion to prohibit same-sex marriage (though the majority opinion could just have easily read “the freedom to marry, or not marry, a man or woman of another race,” instead of “a person of another race), the same principles could be applied to sexual orientation without making any great leaps.

Take away a basic civil right, by a simple majority vote, and what are you left with?

“Your Rights Are Our Rights,” read the backs of the t-shirts one gay couple (with 30 years together) wore to one prop. 8 protest. I can guess what they meant by those words, but perhaps it was a statement that they should have the same rights and protections as any married couple.

But that statement can be read another way: “For the majority, ensuring the minority’s rights becomes a matter of self-interest, since it must utilize the same rights when it is in minority to seek to become  a majority. …the minority’s rights must be protected no matter how singular or alienated that minority is from the majority, or the majority’s rights lose their meaning.”

Your rights are our rights. Our rights are your rights. Deny ours and you endanger your own — and undermine the system which supports them.

The day will come when you are in the minority, after all.

To other minority groups — including Mormons — I say the same thing that I said when Proposition 8 passed. You may not be gay, but you may be next. You have opened the door to putting minority civil rights to a majority vote.

The day will come when your rights, your citizenship, your humanity is up for a vote. Will anyone else stand up for you? Why should they? Will the people whose rights you so enthusiastically voted away stand up for you? Why should they?

The day will come.

Given time, the day will come when your rights as a minority are the subject of a ballot initiative — when your neighbors vote on wether or not you should have the same rights as them. They will not have a stake in the outcome. They will wake up the next day with the same rights they had the night before. You will not.

We have come a step closer to embracing the idea that might — in this case, in the form of number and votes — makes right.

Justice is what the majority says it is. Or, at least, what the majority says it is today.

Series NavigationThe Day Will Come, Pt. 1The Day Will Come, Pt.3

Comments are closed.

%d bloggers like this: