Rights and Democracy
Democracy and constitutional rights fit together better than some people think.
Most people don’t think of democracy as some hyper-pure system where two wolves and a lamb decide whom to eat for dinner. They envision a constitutional republic that protects fundamental rights while also democratically controlling government’s legitimate decisions and policies.
Increasingly, our representative bodies — from city councils to Congress — have attacked both our rights and our votes.
We need a direct democratic check on government; we need voter initiative and referendum.
Yet, even when citizens vote directly on an issue, the courts remain there to provide an additional check. Recently, Federal Judge Vaughn Walker struck down California’s Prop 8, a state constitutional amendment banning gay marriage. He said the measure violates the 14th Amendment’s requirement of “equal protection of the laws.”
Controversial? Yes. Sensible? Also yes.
Not so sensible, though, have been some criticisms.
My friend Joe Mathews, no initiative enthusiast he, wrote in the Washington Post: “Perhaps the spectacle of a federal judge overruling such a momentous electoral result will force Californians to reckon with the fact that their initiative process is at odds with norms of American civil rights and government.”
But this is about rights, not procedures. The vast majority of states have bans just like California’s. Banning same-sex marriage has been popular with both legislatures and voters.
Politicians can be wrong. Voters can be wrong. Judges can be wrong. But with each checking the others, we will be better off.
This is Common Sense. I’m Paul Jacob.