Take My Initiative, Please
In response to my post yesterday, Proposition 8: Be the Change, in which I asserted my view that the California initiative process is flawed, my dear old law-school buddy, who goes by the name Last Place Finisher in the Blogosphere, ended his comment by asking:
To answer that question I responded with a hearty “heh” or two, and I said some other stuff. I would also add the following about voter initiatives in general, and Proposition 8 in particular:
Power to the people is hardly revolutionary and is important part of democratic self-government. However, James Madison and Alexander Hamilton pointed out that pure democracy would produce a tyranny of the majority, and only representative government could both implement the people’s will and filter out the passions and prejudices of majority factions. It is obvious that the importance of having some form of direct democracy is sometimes at odds with the having a representative government intended to protect individual interests. The remedy for this dichotomy is in the proper structure of government, according to Madison and others. The principles of direct democracy versus representative government are balanced between the powers of the state and federal government, and checked through the legislative and judicial branches of each.
For example, the federal government has no mechanism for lawmaking directly by the people. Any change in positive law must come through Congress, or in the case of a constitutional amendment, in state legislatures or conventions. However, in about half of the states, including California, direct legislation through popular vote is allowed. The initiative process in California has been described by some constitutional scholars as one that is on the liberal side of the direct-democracy spectrum. In any event, while the scholarly debate about whether and how it might be overhauled is not a new subject, the passing of Proposition 8 has highlighted the need to examine the problems with California’s initiative process more closely and make changes more immediately.
Meanwhile, courts must fulfill their purpose in our system of checks and balances. In this case, the California Supreme Court must decide whether Proposition 8 violates the state constitution, procedurally and substantively. In my humble opinion, it does. On the federal level, the U.S. Supreme Court must eventually decide the issue of whether denying state licenses to same-sex marriage partners is a violation of the equal protection clause of the U.S. Constitution. In my humble opinion, it is.
Although we cannot take away the flaws in the California voter initiative process overnight, we can take the initiative to effectuate change in another and more immediate way. We can Join the Impact and be a part of nationwide protest against Proposition 8 on Saturday, November 15.
For information about the nationwide protest in your city: CLICK HERE
If you cannot participate on Saturday, you can still help by spreading the word on your blogs, Facebook, and through Google and Yahoo groups.
For Facebook: CLICK HERE
For badges for websites and blogs: CLICK HERE
Readers, are you in?