Thursday, January 15, 2009

Will Guffaws

George Will does not like what he sees in Jerry Brown's challenge to the constitutionality of California's proposition 8:

In a brief responding to Brown's, Kenneth Starr -- former federal judge, former U.S. solicitor general, current dean of Pepperdine University Law School -- notes the absurd consequences of the proposition that "the people can never amend the Constitution to overrule judicial interpretations of inalienable rights."
Will is too bashful to clearly specify what's absurd about Brown’s effort; I take him (and Ken Starr) to be counting on the phrase "judicial interpretations of inalienable rights" to arouse snickers, chortles, tsk-tsk's, and grunts of such peevish strength to stand in for an argument.

For all my attempts at heartfelt guffawing along with Will and Starr, I see nothing of substance. Suppose that instead of canceling gay marriage, California voters had amended the state constitution to establish Scientology as the state's official religion. Or suppose they voted to permit workplace discrimination based on an employee's opinions of Michael Bay's shitty films. The AG of California would presumably challenge these in court, but Will and Starr would be left with their empty guffawing.

Granted, forcing a constitutional provision to be adjudicated in the light of the same constitution it legally amended is the sort of thing that makes people hate lawyers and judges, but such is the way of the law and its profession. Popularity is not the relevant standard when it comes to constitutionality, not even in cases of voter-approved amendments.

Curiously, Will affirms this in the very same column:
Passing laws by referenda is an imprudent departure from the core principle of republican government -- representation: The people do not decide issues, they decide who shall decide. But the right of Californians to make laws through the direct democracy of referenda is as firmly established as it is promiscuously exercised.
The words "imprudent" and "promiscuously" express what is recognizably an argument about the tangled, tortured ways that constitutions form and change over time -- one that undergirds what Jerry Brown is trying to do right now.

(via Rust Belt Philosophy)

6 comments:

Zennalathas said...

While I agree wholeheartedly that gay marriage should never had been banned, the problem isn't direct democracy, it's the people voting and the lack of a proper public forum in which to debate and the further lacking of a culture in which that debate would be carefully considered.

Representative democracy is not the solution to these problems as it creates its own, maybe worse, long term issues. Education is really the problem and the American (well, North American actually...) idea that opinions and beliefs should define a person and stay static during their lifetime. Basic Logic isn't on the high-school curriculum and oh how it ought to be.

I'm not really sure if I'm commenting on the content of this post exactly...this is really just where it got my head spinning.

Dale said...

Zen, thanks for the comment. The point you're making is relevant and true. Allow me to expand on it.

I *do* have a quarrel with the underlying point Will was making (or one of them), a POV which Andrew Sullivan (and others who should know better) has embraced for some reason, namely, that we're inching ever closer to broad public acceptance of gay people and should therefore back off the civil rights litigation. We're getting close to the point that a slender majority will stop hating gay people enough to vote away their rights.

Probably so, and if so, goody gumdrops for that -- I want that day to come -- but it's beside the point. The point is simply this: full civil and legal equality for gay people YESTERDAY is non-negotiable. I am not willing to wait around for bigots on that. Bigots -- and that includes half-bigots and conflicted bigots and people who just aren't sure what they think about the gays yadda yadda yadda -- DO NOT get to set the timeline or redefine "equality" to mean what they prefer in the way of babysitters and workout buddies and classmates and party guests and club members. No. Full stop. It's not their call to make, just as it was not their call to make vis-a-vis the rights of black people in the USA.

Had we waited around for majorities to favor full civil and legal equality for non-whites on a state-by-state basis, we'd probably still be waiting in quite a few places.

The demand is for full civil and legal equality. The time for that is now. Today. This morning. Individuals can get around to feeling good about it on their own goddamn time. Or they can go to their graves feeling cranky about it -- who cares?

I want people to get along and like each other. But I want people to live under full civil and legal equality a lot more.

larryniven said...

Yeah, I sort of feel as though you're sort of meandering into the same line of fire as Will did, Zennalathas. Yes, if our ultimate concern were the democratic process, then the most flagrant problem in this situation would be those things you talk about: no room or temperament for debate, etc. But you would be hard-pressed to convince me that the popular vote is so great that we should let it go through growing pains on basic civil rights (in this case, equal protection under the law).

You'd think, though, that if Will really wanted to write something about the tension between voting and constitutionality, he would've said something about this dope. So in addition to his bad reasoning, I'm pretty sure now that he wrote that just to kick a leg out from under the LGBT movement, and Sullivan completely took the bait.

Zennalathas said...

Well I certainly wasn't trying to say that LGBT activists ought to stop doing what they're doing, or that it's in some way acceptable to keep equal rights from the LGBT community. I'm just trying to underscore the point that representative democracy as has been adopted in the Western world at the turn of the last century doesn't appear to be any sort of real solution to such a problem.

The constitution of the United States and its applications is one way to approach this issue, but considering that document has no bearing on a single other country, perhaps using it as a guiding light towards a solution is a little inappropriate for such a global problem. Of course, you may be advocating for the LGBT community in the US only and then I cannot fault you, but so use it so is to pigeon-hole the argument and I don't think that's particularly helpful in the long game.

Before I go any further, I'd like to say that I agree almost entirely with virtually everything this blog's covered since I began reading it forever ago, and I'm largely playing Devil's advocate here both to push the ideas that we've all covered so often somewhere new, and to challenge my own understanding of the problem. I think that's healthy.

So what bothers me is that relying on the constitution harks back to the original problems with our new form of democracy: did it come from a place of equality? No. Equality and egalitarianism have rarely cropped up in the philosophy of democracy since the Greeks were conquered those few thousand years ago. The process that the West came up with on the coat tails of industrialism didn't stray far from oligarchy, and still hasn't truly since. The same select and rich group of people continually provide the candidates that the voter is forced to vote for. Say what you will, but these candidates were not chosen by the people, not directly, and in no way represent the complex and contradictory nature of a nation's political belief system. Worse yet, the checks on these people's power and the supervision over their political actions aren't held accountable to us, but to the system from which they were offered to us. We have no truly effective way of holding the politicians accountable for what they're doing, at least no comparatively to the Greek model of democracy, or even the Roman model from which ours pretends to be based. The voter and the politician are not inherently equal in the eyes of modern democracy.

As scarce and terribly truncated as that summary is, you can see why I balk at the idea of basing equality discussion upon constitutionality. The constitution is spawned from a system that was never intended to represent equality and human rights. You really don't have to go any further than look at the British system from which the US's is loosely based for proof.

While I agree that it's disgusting of the American people in California to ban gay marriage, I can't really realistically expect more of the representatives who allowed this motion to follow through, since they're of a system not designed to accommodate true equality. I find that it's just as much a political problem as it is a culture problem, and that it's more sound to lay down arguments based in ethics rather than Western democratic and political philosophies.

Sorry if this is coming off as hostile or something. I'm not trying to be mean, I just think this is worth discussing and you're someone worth having the discussion with. Also, I'm probably not as great at arguing this point as I think I am since it's really just coming out of my recent political theory classes and while I did well in them, that doesn't make me any sort of an expert. I'm fully willing to accept being out to lunch here.

Dale said...

Zen, nothing hostile seen by my lights. It's all good; I appreciate the discussion.

I do try not to make too much a fetish of the constitution (or any constitution). I like the Universal Declaration of Human Rights better, but it's also imperfect, and of course, it does not have a court of law that will actually enforce it meaningfully.

I do think it's important to wrangle over what such charters mean and embody and imply. It's not the whole thing, but it's important. I think it's useful to have a common statement that oppressers will at least have to find ways to weasel around.

You say: "While I agree that it's disgusting of the American people in California to ban gay marriage, I can't really realistically expect more of the representatives who allowed this motion to follow through, since they're of a system not designed to accommodate true equality."

A couple of things about this -- I think the California legislature is actually ahead of the people on this. I could be wrong, but I think that's the case. But the larger point is that the state legislature can't do much to stop a voter initiative. It gets the signatures, it gets on the ballot, and then the people vote. (Bypassing the legislature was a big part of the motivation for the initiative/referendum process.)

The courts have some room to step in now, and I hope they do.

The other point is that I think you're letting politicians off the hook a little too easily. I think they have to be pushed and prodded and poked to accept equality at every opportunity. We can be sure that wingnuts and religious wackos will be pushing them the other direction. If we just sit back and get world-weary about it, it lets the idiots win. That's not OK.

larryniven said...

That clears things up somewhat: yes, ultimately, it will be kind of silly for every country to have to rely on its own flavor of universal human rights. I don't think, though, that Will was making that point at all, and I took you initially to be trying to make him more plausible. Devil's advocacy is all well and good, but you've got to be ready for the angels (or at least some lesser demons) to respond, no?