There has been much discussion about the California ballot initiative that would ban same-sex marriages from a moral / social / religious perspective, but not much about the concept of overturning court decisions by majority vote.
Vikram David Amar at Findlaw writes in a post entitled, “The California Supreme Court’s Gay Marriage Opinion: The People of California Have the Power to Undo It By a Ballot Initiative Amending the State Constitution, But How Far Should That Power Extend?” and argues that the majority should have the abiltiy to change the California Constitution.
By definition, whatever the California people want the California constitution to be, it will be. In this regard, I might disagree a bit with Professor Dorf’s assertion that “California constitutional law [does not] embrace the view that minority rights turn on the majority’s willingness to recognize those rights.” In a very real sense, California constitutional law – and all constitutional law, for that matter – does embrace that exact view. As my brother and (sometimes)FindLaw colleague, Akhil Amar, has put the point: “In the end, individual [and minority group] rights in our system are, and should be, the products of ultimately majoritarian processes.”
Columbia University School of Law Professor Michael Dorf, on his blog, MichaelDorf.com, writes a post entitled “California’s Majoritarian Difficulty” and argues that this may cede too much power to the whim of the majority:
. . . the ease of amendment of the California Constitution should dramatically reduce the fear of judicial activism in California. If the Justices are terribly out of step with popular opinion as to the meaning of the state Constitution, the voters of the state can readily “overrule” the Justices. Thus, there is no real “counter-majoritarian difficulty” in California.
There does, however, appear to be a “majoritarian difficulty” in California. One of the purposes of having a constitution is to limit majoritarian decisions. Where a high court ruling is too difficult to change via constitutional amendment, the counter-majoritarian difficulty arises. But where the constitution can be amended as easily as a statute can be enacted, it effectively does not limit the majority, and thus we have the majoritarian difficulty.
Where, exactly, is the sweet spot between a Constitution that is too difficult to amend and one that is too easy to amend? That’s a hard question to answer in the abstract, although prima facie, a constitution that is impossible to amend (as the German Constitution purports to be on certain particulars) seems too difficult, whereas a constitution that can be amended by the ordinary legislative process (as the Israeli Basic laws can be) seems too easy. But much depends on context. A simple majority vote in the national or provincial legislatures is all that’s required to supersede a constitutional decision of the Supreme Court of Canada under the Notwithstanding Clause, but a strong customary norm has made that power very difficult to invoke in practice.
The California Secretary of State has posted a study, including titles and results, about the history of California initiatives from 1912 to 2001 at http://www.sos.ca.gov/elections/init_history.pdf
Among the proposed initiatives that made the ballot which would have amended the California Constitution, some have relevance to the issues we discuss on ReligiousLiberty.TV.
One Day Rest in Seven (1914) (Rejected)
Requiring Bible in Schools (1926) (Rejected)
Sunday Closing Law (1930) (Rejected)
Taxing of School Property of Religious and Other Non-Profit Organizations (1958) (Rejected)
Subversive Activities (1962) (Rejected)
Terminal Illness – Assistance with Dying (1991) (Rejected)
Names of proposed amendments, including frequent initiatives on Bible reading in school, Sunday closing laws, and School Prayer, and racial issues that arose earlier in the 1900s that did not make the ballot are not included in this list, and it is in no way comprehensive. But they do illustrate some of the types of issues, aside from the routine tax, budget-type issues that Californians can decide.
Some may argue that voters have a basic sense of fairness and goodwill and understanding of fundamental human rights, as traditionally expressed in the Declaration of Independence and the United States Constitution, and would only sparingly use their votes to curtail the attempts by other to maintain or gain rights, and then only under the most dire of circumstances.
But in times of fear and uncertainty, when an advantage at the poll might lead to an advantage in the pocketbook or increase a sense of security or a desperately needed return to spiritual orthodoxy, all bets are off.
The power that Californians have to change the constitution must be applied with fear and trembling. This process can be easily abused, and a quid pro quo among competing interests could even now be in the development stage. If the marriage amendment passes, will advocates then seek to undermine the property interests of churches or the rights of religious workers? We know what is on the November 2008 ballot, but can only vaguely predict what we will see in 2009, 2010, and beyond.
For Californians and residents of other states that have a similar initiative process, your rights under your state’s constitution are in the hands of your neighbors. Treat them well.