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Dianne Hardisty: 'We the people' aren't always right
| Thursday, Jul 17 2008 11:31 PM
Last Updated: Friday, Jul 18 2008 2:20 PM
We the people aren't always "right." And it ticks us off big time when we are told that.
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The latest example is the California Supreme Court's ruling tossing out Proposition 22, the ban on same-sex marriage that voters passed in 2000.
How dare those pompous, activist judges defy the will of the people, Californian letter writers demand, exclaiming "we, the people" have spoken. They claim the Founding Fathers — the men who crafted this nation's Constitution — would be shocked and appalled.
Actually, the Founding Fathers would be pleased. Likely not by same-sex marriage, which might shock and appall them. Rather, they would be pleased to see that the checks-and-balance system they created centuries ago still works today.
Whether it's at the federal or state level, there are three branches of government executive, legislative and judicial. The executive is the president, or governor, along with all of his or her hired help and appointees. The legislative is the Congress or state Legislature. (When it comes to voter-passed initiatives, voters fit into this branch.) And the judicial branch is the courts, which review the actions of the others.
Using the federal and state constitutions as measuring sticks, judges determine if the actions of the other branches including the regulations and laws they enact are legal. If they are found "unconstitutional," or in violation of the Constitution, laws are tossed.
That is what happened to Proposition 22, the gay marriage ban. For whatever reason — maybe proponents just screwed up — the initiative changed state law, but not the state Constitution. Last month, California Supreme Court justices concluded the ban was therefore in conflict with the Constitution.
Same-sex marriage opponents will try to get it right this time, returning to voters in November with a new ban that proposes to amend the California Constitution.
Hiram Johnson, a progressive California governor in the 1910s, is credited with establishing the ballot initiative as a way for voters to directly make laws. The invention was intended to break the corruption in Sacramento.
Voter-approved initiatives have resulted in groundbreaking, although controversial reforms, such as property-tax-cutting Proposition 13, as well as some bonehead ideas tossed after judicial review.
For example, in 1963, state legislators passed the Rumford Fair Housing Act to end housing discrimination. The next year, voters passed an initiative to kill the act and to retain discriminatory practices. On that same 1964 ballot, voters passed an initiative banning cable television. (Can you believe that?) The courts found both voter-passed laws unconstitutional.
Several attempts by voters to pass initiatives to reform political campaign financing have been ruled unconstitutional. And In 1994, voters overwhelmingly passed Proposition 187 to deny public services to illegal immigrants. That, too, was found unconstitutional by justices who ruled that even people living in this country illegally had rights to some government services. The list of court-voided voter-approved initiatives is long.
The state Attorney General's Office reviews initiatives for "form" and "process" before they are placed on the ballot. But rarely is there an attempt by the courts to kill a constitutionally flawed initiative before it reaches voters.
So time after time voters pass initiatives only to be told, "Sorry Charlie, the law's no good."
Judges are loathe to keeping voters from voting on any initiative, even the lamebrain schemes that well-heeled special-interest groups place on the ballot.
On Wednesday, California Supreme Court justices refused to hear a case seeking to block the new proposed ban on same-sex marriages from the November ballot.
Justices let voters have their say first, leaving us to rant if our "will" is overturned.
E-mail Dianne Hardisty at dhardisty@bakersfield.com.