The Not Quite Adventures of a Professional Archaeologist and Aspiring Curmudgeon

Wednesday, May 27, 2009

What's in a Constitution, After All?

As you may have heard, the California Supreme Court determined that Proposition 8, which amended the state constitution to prohibit gay marriage, was passed in a manner consistent with the state's constitution. I'm not going to get into my views on the proposition itself - my views on the matter and my dissapointment with my fellow Californians is no secret - rather, I have to say that I am disturbed by the notion that the state constitution can be amended by a simple majority in a public vote.

This disturbs me for a very simple reason - a constitution, whether state or federal, is the basic law for the region of its jurisdiction. All other laws must be subservient to the constitution, requiring that the constitution be a stable document not prone to easy manipulation. In the case of the U.S. constitution, it is necessary for two thirds of the legislature to propose an amendment*, and for three-fourths of the states to ratify the amendment. It's tough, as it should be, but it does allow for flexibility and growth in the law.

Although the dynamics for amending the state's constitution should be different - a state government is a different entity than a federal government after all - it is nonetheless the case that, being the founding law of the state, the constitution should be a tough document to alter. Frankly, I do not think that it should be alterable by popular vote - more on that below - but if it CAN be altered by popular vote, then it SHOULD be a large majority, at least 75%, and not a simple majority. This leaves us open to a wide variety of very bad laws being encoded into our constitution because a well-funded group successfully used scare tactics or other methods to manipulate the populace to vote on a meritless measure.

At any rate, even those who favored Proposition 8's purpose should see that there are some serious problems with a system that allows the foundational law to be changed so easily.

Okay, so as to why I think that amending the constitution should not be left to popular vote...

It's sounds good on the surface. After all, it allows us, collectively, to decide the laws under which we live. But it's really not as simple as that. Take a political issue - immigration, education, science funding, prison policy, and so on - and you will find at least two sides, and usually more, pushing policy positions. If you have the time to really dig in, and you manage to successfully separate propaganda from the actual information, then you will quickly discover that at least one side is full of crap, and often you will find that EVERY side is full of crap. And yet, full of crap or not, voters will flock to the position that best fits with their preconceived notions (and this typically includes even the voters who go with a position that it based in reality - they do so because it fits their previous ideas, not because it makes sense). The reason for this is simple: most of these issues are complex, and none of us, myself included, has the time or energy necessary to investigate every claim.

Which is why we hire (read: vote in) legislators - their job is to investigate these issues, usually with the help of staffers, and make decisions based on the best information available, so that the rest of us can do our own jobs knowing that we have delegated this task to someone. But that's not how it works, of course. Legislators have found that getting re-elected often requires making popular policy decisions, which are often either bad or simply innefective. When there is a tough decision, one that is likely to get a legislator in trouble no matter how they act, well, they can rely on the initiative system to deal with it so that they don't have to take responsibility.

Don't get me wrong, I like the initiative system, in principle. And it has delivered some very good legislation, as well as some very, very bad legislation. But it has become abused, and we, the people of California, have become the micromanagers who do the work of our employees (the legislators - remember, they are not our leaders, they are our employees) and the employees have become lax on their duties as a result.

* Actually, an amendment can also be proposed via a constitutional convention, but this has not been done in U.S. history.


Evan Davis said...

In California to get the amendment on the ballot you need either 2/3 of the legislature to approve it or about 650,000 signatures. If it is a revision you are required to have a constitutional convention. The supreme court decided that it was a amendment and not a revision.

I am fine with the result. It didn't impinge on any human rights, it doesn't force society to conform to one small group's opinion and millions of voters weren't disenfranchised.

I would have been angry if it was repealed and not for the reasons you would think. California voted it in once with 63% of the vote (prop 22). Those voters were disenfranchised when the Caliornia Supreme Court, unable to find anything to support or not support the law, decided it was unconstitutional. By that samy logic speeding tickets are unconstitutional because the constitution failed to mention them (now that's bad judging). Then when the people gathered enough signatures in record time to amend the Constitution, no one even questioned the validity of the measure. If there was something inherently wrong with the measure it should have been dealt with immediately. But to question it after the fact when both sides had spent over $100 million (prop 22 + 8) is wrong and unethical. Do they get their money back?

Anthroslug said...

Getting an amendment on the ballot is one thing, it's noncomital and does not actualy require anyone to take responsibility. Getting the amendment passed is quite another, and turning it over to a simple majority vote is both a bad idea and a neglect of duty on the part of legislators. My point still stands.

"It didn't impinge on any human rights"

I can easily say that yes, in fact, it does impinge on human rights. It uses the force of law to push religiously-derived behavioral codes onto everyone, regardless of whether they subscribe to the religious code or not. And yes, I know many people have tried to rationalize explanations as to why this is not a religiously-based code, I have yet to hear a single one that actually stands up to even the barest of scrutiny, and everyone I have heard is based on weird assumptions and (sometimes intentional) misunderstandings of human biology and behavior.

"it doesn't force society to conform to one small group's opinion"

But, again, it does force people who are doing no harm to anyone to conform to a religiously-derived code of behavior - again, regardless of whether they are part of that religion or not.

And let's be clear here. The claim that allowing gay marriage "forces society to conform to one small group's opinion" is complete nonsense. You will not be forced to marry a man, nor will I. My sisters will not be forced to marry women. The anti-discrimination laws may have some minor changes, but nothing will prevent churches from preaching the sermons they want or refusing to perform ceremonies that they find repugnant (your own church is not forced to allow non-Mormon weddings in the Temple, the Catholic Church is not forced to perform weddings for people who have been divorced, and racist Chrisitian Identity churches can not be forcd to perform inter-racial weddings). In short, the only group for whom anything really changes is the group that has now had the rights extended to it.

The claim that gay marriage forces society to conform to a minority's views is, and always has been, rhetorically effective but factually empty. It preys upon the believe that this will require some sort of massive re-shaping of society and the rights of religious groups being gutted, when, as can be seen in places where it has been elgalized, this is complete bullshit. It's the use of a non-existent boogeyman.

"and millions of voters weren't disenfranchised"

Except for those voters who have had their rights interfered with by an unnecessary and intrusive law.

Also, you rather freely dismiss the earlier court decision as baseless. However, you do not actually address what the court actualy said. You have done something similar on your own blog. You may wis to read the court's rulings and opinions before you dismiss them - it may be that you will still be unprsuaded, but you will be unpursuaded AND informed.

Evan Davis said...

"it over to a simple majority vote is...a bad idea...My point still stands" I didn't disagree. I was just providing information. I think it should be changed to a 2/3 majority. We should do it in the next election. Boo-ya!

I define a human right as something that needs to be allowed for by the fact that we exist. This would include reproduction, our appearance, the ability to think and the fact that we're alive. There are no rights inherent in making choices. If you choose to be something outside the societal norm, society is not obligated to make concessions for said choice.

Example 1: I choose to smoke. Society does not need to provide health care for your subsequent medical conditions (despite the fact that we do).

Example 2: I choose to disagree with your tax policy and do not want to adhere to it. Fine and dandy, but society does not need to accept your decision.

I like your statement of religiously-derived code of behavior. It implies that because a religion is behind the idea that it is inherently wrong.

"The claim that allowing gay marriage "forces society to conform to one small group's opinion" is complete nonsense." Not really. No, I won't be forced to marry a gay man. Duh, but governmental agencies will be forced to consider being Gay as an equal alternative to heterosexuality. If my child at school asks about Tim's two dads the teacher would give a response like "that was their choice" or "it's not a big deal, Tim's not weird" which I am more than happy with. The difference without prop 8 is that the teacher would be required to include it in regular curriculum like when they talk about families and parents as well as teach it as a normal choice when teenagers are confused about their sexuality (as they all are at some point). I don't want my child to think that this is a viable choice when they come to that point in their lives. Too many kids are choosing to be gay because it is being pushed as popular and acceptible.

You can say that this won't happen, but I use extremist Christians as an example. When told that their children could not pray in schools they rose up and sued the school systems, who then had to allow it back in. If school teachers refuse to teach gay marriage as a healthy normal relationship then the gay community will just sue to get it there. Why don't they do it now? There is no legal backing for such a case, but if proposition 8 did not pass they would have all the backing they need. Of course the opposing argument is that this would never happen, but go and read a GLBT news site and you will find article after article on how getting rid of prop 22 and 8 would be opening the flood gates to sue for other issues.

Don't get me wrong. I do not support hate. I want partners to visit their companions in the hospital, give insurance coverage to whoever they want and be able to file for joint custody over children. These concessions actually help the populace in general.

Oh, and I have read the ruling on proposition 22. I ready it when I was disenfranchised 8 years ago. It uses the arguments of 1. The California Constitution does not differentiate; 2. Civil Unions and Marriages have the same rights; and 3. The prescedent of interracial marriage ruling. They use #1 & #2 to say that legislators are just arguing semantics and that they have already approved marriages under the guise of Civil Unions and that since they are the same gay marriage Constitutionally supported. They used #3 to try to make it sound like a discrimination issue, but then went back to their original argument. So it boils down to the fact that when the constitution was originally written it wasn't seen necessary to explain that marriage was meant to be between a man and a woman only and because it's not there it means that gay marriage is the same as regular marriage. "And when everyone's one is." -Incredibles

Evan Davis said...

Oh, and please don't lump me in with the normal nut jobs you run into on most ultra "christian" subjects. I just don't like going into extremely long explanations (mostly out of laziness) on how I came to conclusions. I probably didn't even answer all your points on the that last comment. Sorry.

Which reminds me. I need to finish another blog post. You might like this one.

Anthroslug said...

So, a few responses:

You can define human right as you did. I would point out that such things as the right to vote are not considered human rights by this definition, so be it. However, as it excludes many things that are generally considered human rights, your definition does not appear to be the same as anyone else would use in this type of discussion.

As you should know full well by now, I do not claim that a code of behavior coming from religion necessarilly makes it invalid - it's when the code of behavior is arbitrary and harms someone for no real reason that it is bad. I find it extremely insulting that you would imply that I was claiming otherwise.

Your comparison of individual children praying in schools and mass changes in the curriculum in public schools if Prop 8 were repealed is comparing apples and oranges. One has to do with the right of the individual to practice religion under the U.S. constitution, the other with the way that education policy is produced.

On the same token if a group has a legal right to do something, teaching that they have the legal right is not indoctrination, merely pointing out the factual.

You made a quick comment about people choosing ot be gay. You and I have been over this many times. I feel like I am ramming my head into a wall everytime that we go over this. Your assertion that this is a matter of choice is flat-out incorrect. We have gone into the reasons why it is incorrect before, and I frankly lack the will or energy to do so here again. However, I find it amazing that someone who is as capable of making himself well-informed as you are continues to buy into this long debunked belief. Normally I would think little of it, we all have our quirks, but as you have often used this as a rationale for supporting legislation that is descriminatory, I find it more and more frustrating everytime I hear it.

Evan you are a smart guy, one of the more intelligent people I know. Please gather and really evaluate the evidence and reconsider your on this one point.

Anthroslug said...

Also, I was not lumping you in with nutjobs, nor your church with nutjob churches. My point was simply that even the nutjob churches are allowed to do more-or-less as they please, and as a good deal of the claims about the alleged evils of gay marriage revolve around churches losing rights, I thought it wise to point out that churches running from the mainstream to the nutjobs all will retain their rights whether gay marriage is legal or not. The legal precedent is on the church's side, as is the Constitution.

Anthroslug said...

Actually, I think I might have stumbled upon why we are arguing so often about whether being gay is a choice. Quick question - do you define being gay as desiring same-sex relationships, or do you define being gay as ACTING on those desires?

The desire is not a choice, that's pretty clear (and it is also what is generally meant by "being gay"), while the actions arguably are based on choices.