My friend Jerame Davis once described himself as a member of the Schoolhouse Rock generation, which naturally made me think of the classic "I'm Just a Bill" cartoon explaining how a law is enacted. While his explanation is accurate and succinct, as we grow older we learn that there is more to the process than what scrolled-up Bill sang.
With some exceptions, the legislative process is tedious, cumbersome, frustrating and often ugly. It sometimes seems as though legislatures are reactive rather than proactive. Furthermore, when the Congress or the state legislature, the city council or even the local school board does act, administration by the appropriate executive is impeded or checked. Even the judicial process is time-consuming, drawn-out and endlessly confusing.
In an age of instant gratification many people wonder why it is so hard for government to take action. The answer, of course, is that our system is designed that way. It is supposed to be difficult for government to act. But why?
"In a free government the security for civil rights must be the same as that for religious rights."
-- James Madison, The Federalist
The same design is found in our presidential election system. It wasn't much of an issue this year, but there is always some discussion of eliminating the Electoral College system in favor of direct popular vote. On the surface, that argument seems logical and again begs the question why do we have such a screwy process.
The explanation is that the Electoral College is designed to increase the influence of small states and diminish the influence of the large in the presidential election process. Without the Electoral College, the states with the greatest population would dominate the election and, theoretically, the government. The wisdom and effectiveness of this design can be debated endlessly.
These and other checks and balances permeate our constitutional system to deliberately guard against the tyranny of the majority. James Madison also wrote that, "It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part."
The idea is that popular democracy would allow a majority of the population to run roughshod over the liberties and interests of any minority simply because it has the most votes. The founders foresaw the danger that a population, inflamed by the political passions of a moment, could direct the government on a mistaken course or deprive those who dissent from the majority of their property, position or even life.
LGBT people are and always will be a minority. Because of this status, we must remain ever mindful, grateful and protective of our civil liberties. Which leads me to California's Proposition Eight.
The whole disappointment comes about through initiative and referendum; processes that are largely an outgrowth of the progressive era of the early 20th Century and included in many state constitutions. Initiative is placing a question of public policy on a ballot by petition of the citizenry. Referendum is a vote of the citizenry on that issue. Indiana has a weak version of initiative and referendum. Basically, a question of public policy may be presented to the citizenry if the legislature allows it; and, the subsequent referendum is binding if the legislature allows it to be. In California, however, both the petition and the vote are binding.
This sort of direct democracy has a lot of appeal, but as clearly demonstrated on November 4th, it allows for the tyranny of the majority. The sound and accurate judgment of the California Supreme Court to protect an identifiable minority against the tyranny of the majority was nullified by a majority of voters apparently acting upon political passions instigated by interests seeking to overlay civil rights with religious precepts.
This is criticism of both the referendum results and the process itself. Direct democracy may be right for many governmental decisions but definition of civil liberties requires something more. Our system was not designed to recognize civil rights solely by popular vote. On the contrary, it was designed protect against the excesses of such political power.
There will be challenges to the legality of using initiative and referendum to undermine constitutional protections. That will be another discussion for another time. As this argument continues we must stress everyone's mutual interest in protecting minority enfranchisement. And, the argument will continue and again here in Indiana.
Our population is rapidly changing such that there soon will be no single dominant racial, ethnic or religious majority. We all have an interest in not being the minority selected for exclusion. If the referendum result must be accepted and all the state constitutional amendments are allowed to stand, the religious rights of a majority will eliminate the civil rights of a minority. It is still possible for us to argue the mutuality of interest against oppression described by Madison. Included in the same passages quoted above he wrote this:
Justice is the end of government . It is the end of civil society. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger; and as even the stronger individuals are prompted, by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves; so will the more powerful factions or parties be gradually induced by a like motive, to wish for a government which will protect all parties, the weaker as well as the most powerful.
Protection of individual liberties is basic Reaganite republican orthodoxy. On this point, too many of our conservative friends have lost their philosophical bearings. As the party seeks to reinvigorate itself there is talk of it moving further to the right. I doubt that becoming even more conservative will lead to electoral success in the near future but it could lead to rediscovery of Mr. Madison.