No Longer A Democracy?

Supreme_Court_US_2010Most history teachers are quick to correct people about the form of government established by the Constitution of the United States. It’s a republic, not a democracy.

Truthfully, since the 1960s the lines between the two have become blurred, as more and more states turned away from caucuses and closed door deals to choose Party candidates through the primary elections.

But nothing has been more democratic than the initiative process in California in which the people themselves decide on proposed laws and state constitutional amendments.

The initiative process brought Indian casinos to the state, the lottery, and medical marijuana. It even raised taxes while the state and its people were still reeling from the recession. California, it’s pretty clear, won’t be confused with a conservative state.

However, in 2000 Proposition 22, the Knight initiative, was passed into law, stating that “only marriage between a man and a woman is valid or recognized in California.” This law, similar to the Defense of Marriage Act passed four years earlier by the Federal government, added protection to the Family Code which already defined marriage as “a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary.”

Over four and a half million voters passed this law–61% of those who went to the polls. In-court wrangling ensued. In 2008 the California Supreme Court lumped a number of these appeals together and ruled that the law was unconstitutional.

Immediately Proposition 8, an amendment to the California State Constitution known as the California Marriage Protection Act, was put on the ballot. Here’s the text in its entirety:

Section I. Title

This measure shall be known and may be cited as the “California Marriage Protection Act.”

Section 2. Article I. Section 7.5 is added to the California Constitution, to read:

Sec. 7.5. Only marriage between a man and a woman is valid or recognized in California.

For the voter pamphlet then-Attorney General Jerry Brown renamed the proposition, “Eliminates Rights of Same-Sex Couples to Marry. Initiative Constitutional Amendment.” He gave the following description in the election ballot summary: “changes the California Constitution to eliminate the right of same-sex couples to marry in California.”

To this day the media refers to Proposition 8 as a ban on same-sex marriage.

Despite the changed terminology, despite a wall of media giants opposing it, the amendment passed. Over seven million voters decided in favor of the traditional definition of marriage–over 52% of those who went to the poll.

So how can a court undermine the state constitution?

It’s still a little baffling to me. The California Supreme Court upheld the amendment, but then a suit was filed in a Federal District Court in San Francisco.

On August 4, 2010, U.S. District Chief Judge Vaughn Walker overturned Proposition 8, stating it is “…unconstitutional under the Due Process Clause because no compelling state interest justifies denying same-sex couples the fundamental right to marry.”

A merry-go-round of stays and lifting of stays followed, and in the interlude when Judge Walker unilaterally overturned the will of over seven million voters, a host of same-sex couples “married.”

The problem escalated when Attorney General Brown refused to defend the amendment in the appeals court. Another round of arguments cleared the way for proponents of the amendment, a county here in SoCal, to step up and defend the amendment. The California Supreme Court once again ruled in favor of the people, issuing an advisory opinion that the proponents of Proposition 8 did have standing, and could defend it.

However, the Ninth Circuit Court of Appeals, by a 2-1 vote, declared the amendment unconstitutional.

The court found that the people of California, by using their initiative power to target a minority group and withdraw the right to marry they once possessed under the California State Constitution, violated the federal Constitution.

Of course, you need to remember that they only had the “right to marry” because the court had declared Proposition 22 unconstitutional.

The dissenting judge, Judge N. Randy Smith, noted in his dissent that states do legitimately prohibit sexual relationships condemned by society such as incest, bigamy, and bestiality, and impose age limits for marriage without violating constitutional rights . . . He wrote, “The family structure of two committed biological parents – one man and one woman – is the optimal partnership for raising children.” He also said that governments have a legitimate interest in “a responsible procreation theory, justifying the inducement of marital recognition only for opposite-sex couples” because only they can have children. (“California Proposition 8”)

Despite this ruling, the stay remained in place as the appeal went to the US Supreme Court. As you may know, that ruling came down yesterday: “On June 26, 2013, the Supreme Court ruled in Hollingsworth v. Perry that the proponents of Proposition 8 did not have legal standing to appeal a U.S. District Courts’ ruling that the proposition is unconstitutional. The state government had refused to defend the law.”

So there you have it folks: seven million Californians disenfranchised via a series of moves that would have made carpetbaggers proud.

We have a judge who disregarded the will of the people and an Attorney General who ignored the will of the people. And the Supreme Court, instead of standing up for the people, says, well, your state government didn’t defend your vote, so it’s as if you voters never had a say.

That whole process is not the way a democracy works. An oligarchy, with power in the hands of a few, yes. A democracy? . . . May it rest in peace.

Published in: on June 27, 2013 at 6:02 pm  Comments (15)  
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  1. The Supreme Court’s job is not to “stand up for the people” but, rather, to interpret the law vis a vis the Constitution. It is also appellate, and takes no initiative itself. Benchmarking democracy using the Supreme Court is disingenuous.


    • Cameron, if I implied that I expected the Supreme Court to take initiative itself, I apologize for not being clear. Rather, I expected them to do precisely what you said–interpret law in light of the US Constitution.

      But no, they said they didn’t have to interpret law in light of the Constitution because the people who were defending the California law were people, not the state.

      That’s not consistent with Amendment IX or X of The Bill of Rights:

      Amendment IX

      The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

      Amendment X

      The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. (emphasis mine)



      • “But no, they said they didn’t have to interpret law in light of the Constitution because the people who were defending the California law were people, not the state.”

        I have addressed that. Ordinary statute can be simply struck down ans unconstitutional. Ensuing attempts to lift the same statute and apply it as constitutional amendment can also be defeated, on precedent. There is no need to go through the same process and hear the same people again. It then goes according to judicial pecking order, which it did.


        • Cameron, Prop 8 was a constitutional amendment.

          The result of this Supreme Court ruling was that the people of California do not have a right to defend an amendment to their own constitution–one which was never ruled unconstitutional according to the US Constitution.

          We simply don’t have a right to speak to the Court about this issue.

          I’m saying this is not in accordance with the US Constitution. The Supreme Court has undermined democracy by saying that the State only, not the people, must defend their amendment.

          We apparently are no longer a “We the People” government.



          • Constitutional Amendments are not exempt from being ruled unconstitutional themselves. It is no subversion of the will of the people when it is determined their expressed will was unconstitutional. Once again, this is to prevent “tyranny of majority”. And, once again, in this case, it is because minority rights are routinely stomped on. There are other state initiatives that have, and will go similar directions. In the past, laws from some states allowing slavery due to popular initiative have been overruled by the Supreme Court. In Arizona, Oklahoma and Texas, there are immigration and ethnic issues that will be overturned by the Supreme Court if they continue to press forward. No matter what you think, the federal Supreme Court holds ultimate authority, not the states, no matter how you would like the Constitution to be interpreted.


          • Cameron, you’ve made my point precisely. Of course a state constitution or amendment might be unconstitutional based on Federal law, but the California amendment NEVER GOT A HEARING. Because the state officials would not defend it–and it is eminently “defendable”–the Court simply refused to rule on the arguments. The Court does hold ultimate authority as our government has evolved, and this is the very point I am making. No longer do we have anything close to a democracy. We have an oligarchy. Not an organized one, but nonetheless, the people in power positions are the ones who get to make the rules.

            You may be fine with this–you’re entitled to your opinion. I mourn the clear evidences of this no-turning-back direction our country has taken.

            Originally we were a “representative oligarchy,” if you will. Then we moved toward democracy. Now we are moving toward “unrepresented oligarchy,” since justices (and many judges) are not elected officials. Is this a good change? I don’t see how it is.

            I’ll give you the last say on the issue, Cameron. I’ve shot my wad. 😉



          • I do not respect stating opinions as fact. It marginalizes those with different opinions. And we know that is the case today. If I have done that, I apologize.

            There is no need to posture about the last word. People should feel free to speak if they feel they have something to say.

            What I lament is the passing of civilized, logical discourse.


          • By the way, that is the procedure. State constitutional issues overruled by the Supreme Court are argued and defended by the state. Enacting can be initiated by plebiscite (subject to restriction and regulation), but it is put into law by the state. In other words, “the people” can order the state to enact legislation. However, since the legislative branch actually writes the law, and is entrenched as active government by law and by constitution, it is the state to whom the defense goes. If the people petition the federal Supreme Court, they can be heard, at the option of the Supreme Court, but, first of all, they have to have a legal petition, and it must not be superseded by a higher judicial responsibility. It is representative democracy.


  2. Cameron, there is a logical flaw in your argument. The Supreme Court could have refused to hear the case…based on this issue.

    However, the Supreme Court chose to hear the case, and then took issue with who was doing the defending.

    How disgusting of them! Californians; you need to clean house in your state government! The rest of us need to clean house too. Only then can we fix what is broken and breaking even worse in our country.


    • Where is the logical flaw? They could have refused to hear it, but that does not mean they should have. They also could have not refused to hear it, which is what happened. No fault whatsoever. They are a judicial entity, not an extension of one viewpoint. Throughout history they have ruled on issues that extended rights to other groups of people being despised by large groups of people. Frank Collin vs. Skokie comes to mind. And the Nazi Party won the constitutional battle in that case.

      There is great confusion about the function of government and also the mandate of the different branches of government. Thankfully, the Supreme Court rules on the law, and not morality, religion or opinion. This safeguards the system from the “tyranny of majority”, where minority protections are at risk. It is that safeguard that has defended racial, ethnic, religious, sexual, and other minorities over the ages, in spite of large, vocal majorities opposing the rulings. In this case, there is no evidence it is even the majority speaking outrage and opposition, but rather, a vocal minority who feel their viewpoint is so holy that it does not need to be a majority. Remember, both conservatives and liberals can proof-text and cherry-pick.

      As to the US not being a Democracy, that is an extremist talking point these days, and it is patently false. In fact, the US is a democracy AND a republic (not to be confused with the term “democratic republic”). The Democracy Index is an index compiled by the Economist Intelligence Unit, a private business based in the United Kingdom. And, on the Democracy Index, the United States is one of 25 countries defined as “Full democracy”. Internationally, there is consensus that the US is a democracy, by all manner of governments, agencies and organizations. If you mean by democracy 1 person 1 vote on all issues, then you have a utopian view of a democracy that only exists in a few places on the earth, as in some Swiss cantons, where elections and other issues are decided with a hand vote. The US is far too large for that type of democracy, and there certainly would not have been the judicial and human rights progress there has been with everything decided by plebiscite.


  3. The problem with the rule of law is that we now have the wrong one! When, in the 1800s, another minority group prevailed over vociferous outcries, and inserted the “Law of the Precedent,” madness began to take over our courts. Why? Because, to move to this “Law of the Precedent,” based on the latest whim of society, the Ten Commandments had to be tossed.

    It has taken years for enough bold and feckless societal engineers to end up in the higher courts and actually make precedent-setting rulings that defy God’s laws. Now that we have more of these in place, prepare for more “My right is bigger and more important than your right!” fights in the courts, and more insanity, because 1) Only God knows what always works, with creatures He created and 2)Even if people always knew what they really wanted, chances are good that none of us would be able to see all the implications of any personal decision we, or a judge, makes, affecting thousands and thousands of people.

    The problem with us is that we must learn to acknowledge and embrace our creatureliness! It is not only all right, not to be God, but absolutely the wisest thing we could possibly do, to listen to the One Who Is!


  4. “My right is bigger and more important than your right!” fights are exactly what church people are fighting, too. The fundamentals of a supposed ten-commandment-based position don’t take into consideration Jesus’ realignment of perspective of those very tenets. We follow Jesus far less even than we follow the Ten Commandments.

    The point of the Supreme Court is not to find the right dogma but, rather, to protect against dogma. The logic this represents goes back much farther than the 1800s. In fact, this logic was championed in many parts of the world, over millennia. Greek systematic logic goes back to the 5th century BC, with “Reductio ad absurdum” used by Zeno of Elea, It probably has further origins in the Pythagorean School. There is some evidence that some of Jesus’ interactions involved Platonic or Aristotelian logic. 11th century BC Babylon shows examples of axiomatic logic. Ancient Egypt, China and India all have some legacies of logic. Out of the discipline of logic comes the practice of law based on precedent.

    Somehow, we are being asked by some to follow instead the principles of circular logic and dogma. People want that, because it puts people of differing opinion at a decided disadvantage. Islamic people are at a greater disadvantage when they can be vilified as objectively evil by a group of Christians, for example. Women are at a greater disadvantage when they can be vilified by a dominant group of men. And, right now, homosexuals are at a great disadvantage when they can be vilified by a dominant group of dogmatic heterosexuals.

    The scandal of Romans 5 is that God saves us WHILE we are sinners. Not in the moments of achieving purity. Read especially verses 6-8.

    By insisting WHO it is that God embraces, and WHEN, we are presuming to exercise judgement better than God Himself! God is God in spite of our prejudice.

    In the meantime, as much as we might not like it, the Supreme Court works best when it puts dogma aside and looks at the precedent and logic.To suggest that thwarts God’s plan is to emasculate God. Pray, as in the Lord’s Prayer, that God’s will be done, and then have the confidence it IS being done.

    Remember, the identical arguments have been made throughout history to justify prejudice toward other people as well. And, in the name of Christ.


  5. The various posts have also failed to acknowledge that, in 2005, the California state legislature passed a bill eliminating gender requirements for marriage. That bill was vetoed by Governor Schwarzenegger. Why are people not complaining of that move of autocracy? Simple, because of the political direction. If it were a “liberal” vetoing a “Christian” initiative it would produce all kinds of objection from conservatives. As you know, it has, in fact caused all kinds of protest from other quarters.

    As to Proposition 22, it was an ordinary statute. As such, it can be struck down when found in contravention of the constitution. That is how such statutes work. It is not a subversion of the democratic process to rule them down. If the proponents of Prop. 22 gave any other indication it is they who misled the public.

    Prop. 8 is full of wranglings on both sides. To suggest that its being ruled unconstitutional is a result of a perversion of the democratic process is also a misrepresentation of the way the law works. Whether you like it or not, the protections built into the system are there for precisely this type of situation.


    • Cameron, you said, “That bill was vetoed by Governor Schwarzenegger. Why are people not complaining of that move of autocracy?” Because the Governor is an elected official with veto power granted by the constitution. The Attorney General was also an elected official, and by his job description required him to carry out the will of the people. He declined. The justices are not elected. In other words, in this case, the will of the people was silenced. Silenced. Not challenged so that they or their representatives could defend their decision. Rather, a person in power who disagreed with the decision said he wasn’t defending it. And the Court, instead of coming to the aid of the people, allowed this travesty to stand.

      You also said, “Prop. 8 is full of wranglings on both sides. To suggest that its being ruled unconstitutional is a result of a perversion of the democratic process is also a misrepresentation of the way the law works. ” But the point is, the Court DID NOT rule it unconstitutional. It ruled that people other than the state officials could not defend it. That is a perversion of the democratic process.

      I don’t know why you’re bent on insisting otherwise, Cameron. When seven million people follow the law and one or two individuals can undermine it because they don’t like the decision of the majority–that is perversion of democracy.

      Again, feel free to voice your disagreement. I’ll give you the last say. I simply wanted to address these particular points of your argument, and now that I have, I really need to get back to work.



      • “When seven million people follow the law and one or two individuals can undermine it because they don’t like the decision of the majority, that is perversion of democracy.”

        That would be true if that’s what happened. It isn’t. I suggest you read their briefs, or, better yet, their judgements. They followed the rule of law. It has nothing to do with their disliking the decision of the majority. The decision was found to be in contravention of the Constitution. Fortunately, there is a public record, also something required of the Supreme Court.

        As to deciding who they would be willing to hear, I suggest you also investigate what the criteria are for the Supreme Court. This is another good place to read their complete briefs and judgements. Once again, that is about the law and the Constitution.

        I am definitely not happy with many of the decisions and mannerisms of the Supreme Court. But I am thankful, as well, that the same insulation that prevents other special interest groups from influencing prevents me from influencing them, and vice versa.

        Once again, there is no need to prod me, or anyone else, with “you can have the last word” posturing. Say more if you have more to say.


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