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California Case Represents Ills of Direct Democracy
Posted on Dec 20, 2008
There has been a recent push in third-party circles for a move to "direct democracy" in the United States. Direct democracy, where the citizens govern by majority vote, is often favored by those who wish to circumvent elected officials who those individuals feel cannot properly represent the interests of every U.S. citizen. In terms of direct representation, direct democracy truly does meet these goals. After all, every citizen has a voice—technically.
Our current Republic still has strong elements of direct democracy. Voter referendums and other ballot initiatives leave it up to the citizens to decide on issues like lotteries, gambling, gay marriage, abortion and any other legislative initiative citizens would rather see themselves decide rather than their elected officials.
On its surface, direct democracy is appealing because those like Illinois Governor Rob Blagojevich and Alaskan Senator Ted Stevens do not have a chance to craft the laws by which the people are governed.
Majority rule—it's the American way.
However, the recent debacle in California over gay marriage illustrates the dangers and failures of direct democracy.
In the Nov. 2008 elections, California citizens were asked to vote on Proposition 8, which would ban gay marriage in California. And, to the surprise of the state (and the nation as well), Proposition 8 passed by 52 to 47 percent.
Had this been direct democracy, it would have ended there with one phrase: "The people have spoken." But this was not to be the case in the great state of California, where California Attorney General Jerry Brown is currently petitioning the California Supreme Court to knock down Proposition 8 for what he believes to be a Constitutional violation. The linchpin of his case is whether the right of people to marry is considered an "inalienable" right, which the California constitution says cannot be violated—even by the vote of the people to change the Constitution.
"[The issue] presents a conflict between the constitutional power of the voters to amend the Constitution, on the one hand, and the Constitution's Declaration of Rights, on the other," says Brown. He is questioning "whether rights secured under the state Constitution's safeguard of liberty as an 'inalienable' right may intentionally be withdrawn from a class of persons by an initiative amendment."
This is a great question, and one proponents of direct democracy have failed to adequately answer.
The prevailing philosophy of direct democracy is that people should have the final say about the laws by which they are governed. Should this be so, then it would seem that the Constitution would have no supremacy over a direct vote, at least if it is a Constitutional amendment. Granted, people may still change the Constitution in our present form of government, but the case in California has a different moral than its constitutional implications. Proposition 8 represents the ultimate failure in direct democracy and majority rule—when the people vote against more freedom, rather than for more freedom.
The Libertarian Party officially opposes marriage as an institution of government--both gay and straight marriages. "Government does not have the authority to define, license or restrict personal relationships," says the Party's platform. However, some Libertarians argue that until marriage ceases to become a government-licensed institution, there should be equality in it regardless of sexual orientation.
Regardless of the issue specifically with gay marriage, the problem with direct democracy in this case is that the people felt that they had a right to restrict, regulate, prohibit or limit the relationships of their neighbors, and in a system where the majority rule, it certainly was in their authority to do so.
This is not to say that direct democracy could never work, but it could only do so in a libertarian utopia that could also foster voluntarily socialism, societal anarchy or a number of other systems of order that rely on the perfect behavior of those governed. In order for direct democracy to work without violating the rights of others, those citizens who voted would have to have an absolute understanding of and dedication to property rights and individual liberty—something that is extremely unlikely to ever exist.
There is no place for any broad use of direct democracy in a free society because the majority does not always respect the rights of the whole. Even by a simple test against our platform, direct democracy does not stand up to the phrase: "No individual, group, or government may initiate force against any other individual, group, or government."
Government, in its good and bad days, is still comprised of citizens who run for public office; the same citizens who would be voting in a system of direct democracy. The laws passed by our elected officials could just as easily be those passed by citizens in a direct democracy. The problem that direct democracy seeks to resolve is not really how we are governed, but by whom we are governed. And, since we elect those that govern us, we are indirectly responsible for many of the laws that are passed.
One of the most insufferable failures of direct democracy is its vulnerability to the whims and trends of public opinion—something our Founding Fathers hoped to avoid at all costs. This is one of the reasons why the Constitution is so difficult to change.
Laws last much longer than the moods of public opinion, and what society may feel at one point in time may not be what society feels 50 years into the future. Slavery is just one example. Giving power directly back to the people undermines this protection from the tyranny of the majority, and as Libertarians, we fully know what abuse of the minority feels like.
As far as California goes, the people have spoken, even if it's not what some wanted to hear. So long as people are allowed to put referendums on the ballot, there will be times when the majority wins at the cost of minority rights. Does it make it right? Of course not, but that is the risk one takes when transferring direct power from the legislature back to the citizens.
Politics is a reflection of the morality of the people, and our problems with the corruption of government will be solved not by giving people direct control over laws. It will be solved when people begin voting-in public officials who are above corruption. And, should these politicians eventually slip up, citizens vote them out of office.
It's far easier to change out a politician than it is to change a Constitutional amendment.
Direct democracy misses the entire point of government corruption while opening up civil rights to wholesale abuse by the masses. The best defense against domestic tyranny is not an empowered public, but an informed one.