Should citizens be allowed to hold referendums on the rights of others?

[DoH]

Tuesday in Maine we saw the public vote to rollback a law passed by the state legislature that would legalize same-sex marriage. By a slim majority, the state's voters chose to refuse rights to gays and lesbians. The same thing happened in California last year on the question of Proposition 8.

Proponents of such votes trumpet the movements as victories of democracy, and a blow the agendas of so-called "activist" judges who go against the will of the people in their rulings.

Precedent has shown that the courts have been an integral part in protecting and preserving civil rights. Letting the people of Topeka, Kansas decide whether to integrate their own school districts would have resulted into a continuation of the "Separate but Equal" policies that we've seen are inherently unequal.

Additionally, the tyranny of the majority will continue to be seen; a minority group's rights will be trampled in the name of preserving the majority, as people will continue to vote in their own vested self interest. Even laws that violate parts of the Constitution, such as laws against gays or blacks that violate the equal protection portion of the 14th Amendment, can be allowed if approved by "majority rule." The framers of the Constitution were very wary in even allowing the populace to vote, let alone trusting them on important issues such as the rights of others.

In short, I feel that civil rights should not be left up to a popularity contest, because then it justifies rule by a mob majority which oppresses minorities. The courts should strike down ballot initiatives that strip the rights of minorities as unconstitutional.

Anyone disagree?

 

[Sucumbio]

To quote Christopher Patten of the UK:

"I think referendums are awful. They were the favourite form of plebiscitary democracy of Mussolini and Hitler. They undermine Westminster [parliament]. What they ensure, as we saw in the last election, is if you have a referendum on an issue politicians, during an election campaign, say oh we're not going to talk about that, we don't need to talk about that, that's all for the referendum. So during the last election campaign the Euro was hardly debated. I think referendums are fundamentally anti-democratic in our system and I wouldn't have anything to do with them. On the whole, governments only concede them when governments are weak." -2004, BBC

Basically, the process is good in writing, bad in practice. It's a seemingly cogent way to keep the government OUT of your hair if a law is passed that is bad, because the People can basically vote to remove it, and if it's a really bad law, chances are it'll be removed.

However, it is also anti-democratic, in that government ends up having to enforce trivial or otherwise trite decisions that often times have not the important discovery period necessary to make a good judgment. Laws are made by legislators for a reason. The People should be assumed inadequate to write their own laws, and govern themselves through means other than elected representation.

In short, the right to Referendum is (as we can see with the recent example in Maine) oftentimes a bad thing, as it demonstrates a majority-rule mentality that while in principle seems most democratic, is in fact highly suspect.

 

[spookyskeptic]

In short, no. Back when Prop 8 was the biggest headline, I remember reading an article about majority rule. I wish I had a link to it, because the guy that wrote it, made some amazing points. Key among them was that anytime the majority gets to decide for everyone, everyone loses. One of two things will happen: The current minority will be the future majority (my fellow Hispanics, anyone?) or you'll have a reminder that even members of the majority in one issue can be the minority in another issue.

For that first outcome, think about the geeky kid that got beat up in high school. That guy runs stuff in the real world. (There's a Penny Arcade strip about that very phenomenon, btw) He could have easily formed prejudices. In the workforce, Johnny Football Hero is now in the minority. Guess who just got made Little Injun on the Totem Pole? A functioning society cannot risk marginalizing a segment of the population so much that the group in question revolts.

As for the second outcome, under majority rule... Let's just say that if anyone's rights can be taken away, everyone's rights can be taken away.

 

[HaiWayne]

Before I start, I want to clarify that I support gay marriage, but I will nevertheless rebut arguments that I find fault with (so far, everyone who posted have voiced support for gay marriage, and offer my own reason why I believe referendums on gay marriage should be invalidated.

However, it is also anti-democratic, in that government ends up having to enforce trivial or otherwise trite decisions that often times have not the important discovery period necessary to make a good judgment. Laws are made by legislators for a reason. The People should be assumed inadequate to write their own laws, and govern themselves through means other than elected representation.

That argument does not support the view that referendum is undemocratic. Democracy, at face value, simply means government by the people, so in that sense, referendum is the most direct form of democracy. If the people are indeed "trite", it would not be undemocratic if the people enact "trite" laws. And passing laws through an elected legislature is not anymore democratic than a referendum.

I also highly suspect that a legislature would produce "better" laws than the referendum process. Legislators' number one priority is to get elected, and they will vote based on their constituents' wishes, rather than their own beliefs. Since this thread centers on gay marriage, a relevant fact that illustrates this is President Obama's changing views on gay marriage. As Obama became more ambitious in his political endeavors, he also became more and more conservative on the issue of gay marriage. He went from supportive, to undecided, to against gay marriage. He realizes that supporting gay marriage is a risky stance, so he eventually got rid of that stance.

http://www.tnr.com/blog/jonathan-chait/77120/what-does-obama-really-think-about-gay-marriage-telling-timeline

To get elected, politicians also have to get money for campaigns. This makes politicians highly vulnerable to lobbying by special interests and corporations, neither are democratic institutions. Often, politicians decide on a stance based on which special interest group is willing to contribute most money to him.

So I disagree with the idea that the legislature is more capable than the people in passing certain laws, certainly not on the issue of gay marriage. The "Defense of Marriage Act", a federal law that banned gay marriage on a federal level was passed overwhelmingly by the United States legislature and signed into law by Bill Clinton.

Now, to answer the thread's original question, "Should citizens be allowed to hold referendums on the rights of others?" The answer is absolutely, as long as it is constitutional. I emphasize the word "constitutional" because not every form of right of necessarily protected by the constitution. For example, do criminals have the right to life (is the death penalty unconstitutional)? The United States Supreme Court has ruled that criminals do not have the right to life, therefore, it would be constitutional if there was a proposition seeking to abolish OR institute the death penalty.

Despite all I said, I strongly believe that the right to marriage by same-sex couples is clearly protected by the Equal Protection Clause of the 14th amendment of the United States Constitution, therefore, referendums seeking to abolish marriage rights are not constitutional, and ought to be invalidated.

 

[Budget Player Cadet_]

It really depends if we are a value-positive or a value-neutral system.

(I'm not sure of the exact translations from my german politics class, but basically a value-positive system allows the people to decide what is correct in their country to an extent; they could not, for example, choose to overthrow the democratic system, or go against certain set-in-stone policies such as the freedom of speech/religion/belief, equality of all humans, etc., whereas a value-neutral system allows a fully democratic takeover-the people can choose whatever they want, and the government has no choice but to enact it. If the majority decides to end democracy, then the democracy is over)

If we are a value-positive system, what are these values? And isn't a value-neutral system shown to be a terrible idea by spookyskeptic (great post, btw)?