Raw Majority Power: Why Checks and Balances Matter

An epic battle played out on two levels at the California Supreme Court on March 5. On a surface level, attorneys fought over a technical issue of whether the Proposition 8 prohibition on gay marriage represented a revision or an amendment. On the deeper level, the question asked was whether there are any limits on the majority to impact the rights of the minority.

It was a powerful argument – that the people of the State of California have the “raw power” to change the state constitution in any way that they please.

Ken Starr, an esteemed advocate, may have won the battle but lost the war when he asserted that, “the right of the people is inalienable to change their constitution through the amendment process. The people are sovereign and they can do very unwise things, and things that tug at the equality principle.”

Chief Justice Ronald George stretched Starr’s argument to explore its dimensions. He leaned in and asked a hypothetical – if Proposition 8 said that homosexuals had no right to form a family relationship or raise children, could that still be done by amendment? Starr said it could. Then George took the argument to the constitutional wall – could the voters also remove the right to free speech? Starr said yes, the voters have this right.

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