Libertarian Party: California case over gay marriage rights represents ills of direct democracy

Posted by Andrew Davis at LP.org

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rights secured under the state Constitution’s safeguard of liberty as an ‘inalienable’ right may intentionally be withdrawn from a class of persons by an initiative amendment."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.

50 thoughts on “Libertarian Party: California case over gay marriage rights represents ills of direct democracy

  1. G.E.

    No, it represents the ills of the STATE.

    The LP’s preference for an indirect, centralized Washington bureaucracy is even WORSE than the “direct democracy” of the initiative process — even when it produces bad results like this one.

  2. G.E.

    The best defense against domestic tyranny is not an empowered public

    Of course not.

    The LP staff is home to a vicious cabal of Nazi-style Lincolnian centralists.

  3. paulie cannoli Post author

    I think GE is correct.

    I’m in favor of expanding I&R to more states (so long as states exist). I am not so happy with the NI4D proposal, but not because it expands I & R – more so because it centralizes more power at the federal level, while we should be decentralizing it as much as possible.

    I don’t think Davis is correct when he says “something that is extremely unlikely to ever exist.”

  4. richardwinger

    No one in the California marriage litigation is arguing that same-sex marriage is an “inalienable” right. Attorney General Jerry Brown and the pro-same-sex-marriage forces are arguing that the California Constitution is now internally contradictory, since it has a strong equal protection guarantee combined with an anti-equal protection marriage provision.

    I also agree with G.E. that every state ought to have the initiative process for amending laws. I’m not too sure if the initiative process all by itself should be available for amending state constitutions. Massachusetts has the initiative for laws but not constitutional changes. Florida is just the opposite.

  5. Michael Seebeck

    If there is a direct democracy failure here (and I have mixed feelings on it), it was that the judicial review that was supposed to be done as part of the process of putting the initiative together before signatures were gathered was not followed. Had it been, the initiative never would have gotten title in the first place.

    And the Brown argument is correct: passage of Prop 8 does create several constitutional contradictions for California. What nobody seems to notice is that by the Prop 8 supporters asking to invalidate the marriages done between the state Supreme Court’s ruling and Prop 8 passing is that Prop 8 also creates an ex post facto situation, which is strictly prohibited by the California Constitution. The Prop 8 proponents have outsmarted themselves. That’s why Brown thought those marriages were valid.

    See also http://muddythoughts.blogspot.com/2008/11/on-proposition-8.html

  6. George Phillies

    The California Constitution recognizes two categories of Constitutional change, defines a vote needed for each, and apparently neglects to tell the reader how the types of change differ from each other.

    Masasachusetts Initiative can change the state Constitution, but you need a 1/4 (yes ONE) fourth affirmative vote of the State Legislature in two successive sessions to do it.

    The amendment banning gay marriage here died on second vote in the State House. It fell short of 1/4 of the vote. The good sense of the people of Massachusetts was reinforced by the sight of a senior state legislator losing a party primary to a write-in candidate.

  7. G.E.

    I should clarify and say that I’m not necessarily a fan of initiative and referendum. I DO prefer them, at the state level, to decisions being handed down by the federal government or the court system.

  8. Vindex

    I don’t trust the same people who voted in Bush twice to make any laws that impact me. I’ll take my chances with my representative, who is far easier to vote out of office than change a Constitutional amendment voted in by the general public, be it state or nationally.

  9. G.E.

    I don’t trust the same people who voted in Bush twice to make any laws that impact me. I’ll take my chances with my representative, who is far easier to vote out of office than change a Constitutional amendment voted in by the general public, be it state or nationally.

    They didn’t offer Logic at your public school, did they?

  10. paulie cannoli Post author

    I don’t trust the same people who voted in Bush twice

    Not even once. Both elections were stolen.

    More people don’t vote than do, and the Democrats were not necessarily better either time – or if they were, not by much.

    to make any laws that impact me. I’ll take my chances with my representative,

    Who were elected by those same people, so where’s the logic in that?

  11. Libertarian Joseph

    hmm. state-government-organizations are free to have DD all they want, but how do you leave the STATE without leaving your property? You can’t. That’s where the problem is.

  12. Morgan Wick

    Hmm. The Libertarian Party opposing direct democracy? There are not going to be a lot of happy campers about that – one would expect the Libs to be the biggest crowers for DD. More fuel for “LP is getting bastardized” folks.

  13. JimDavidson

    I think the way Davis wrote this essay is indicative of his lack of regard for libertarian positions on major issues. How can anyone in the LP talk or write about referendum without mentioning medical marijuana?

    Direct democracy is certainly a mess, and there are many good arguments to be made against it. While some good has been done with initiative and referendum, a broad class of activities (see the Bill of Rights for a partial list) should be excluded from the tyranny of the majority.

    @7 The ex post facto argument is a good one.

    There are a huge number of major things wrong with this essay. Davis exposes himself as anti-libertarian on many particular grounds. He doesn’t, for example, ever come out and agree with the position of equal protection and equality of rights under the law, though he says that some people think these would be good things.

    The concept of market anarchy or anarcho-capitalism does not depend on people exhibiting perfect behaviors. Indeed, the free market is really good at finding market clearing prices and providing cornucopia with humans behaving entirely as humans – in sharp contrast to Marxism which requires people to behave entirely unlike humans.

    It is well, I suppose, that Davis exposes his essentially neo-conservative, authoritarian philosophy in essays like this one. All the better for getting rid of him.

  14. George Phillies

    More right-wing baloney.

    Would the decision to have amended the state Constitution to ban gay marriage (and, incidentally, marriage as practiced in the Bible and apparently by Mayor Giuliani*) been better if it had been done by the state legislature?

    *Your wife and your concubine — there seems to be no Biblical discussion of polyandry or so I am told — should be kept under the same roof. The first lady of New York allegedly sued for a separation agreement to keep the other woman out from Gracie Mansion.

  15. G.E.

    Would the decision to have amended the state Constitution to ban gay marriage been better if it had been done by the state legislature?

    Yes.

    Don’t talk “right wing” with your classical conservative centralism, George. You are the furthest “right” libertarian I know.

  16. Austrian Economist

    There’s a lot of reductionist logic on hand in this essay. One bad decision doesn’t mean direct democracy is a lost cause. If we used that logic, the Congress would’ve been ousted long, loooooooong ago. Andrew Davis fails to account for numerous factors, one of which is the disproportionate amount of funding that the Mormon Church etc. put forth in order to pass Prop 8. And does everything in the Libertarian Universe have to be boiled down to “more freedom v. less freedom” ? That’s like dangling cookies in front of kindergarteners–the world is more nuanced than that, and it makes the LP just as vapid as the major parties. Present a holistic argument and analysis, but don’t be self-selective.

    That’s like naive liberals saying Obama is “anti-war” because he gave a speech against it before elected to the US Senate. How has he voted since then…

    @13: Right on, Paulie. FIRST AND FOREMOST, the 2000 + 2004 elections were indeed stolen, so all that “I don’t trust the people hoodwinked by Bush” crap is exactly that. And agreed again–why should we take chances with elected representatives, who are even less likely to exercise the will of their constituents and behave more statist once elected? A DD/initiative system CAN be an excellent safeguard to keep their legislation in check while elevating the overall governance. It increases accountability (if done properly), which could very well be its primary virtue.

    @20: GE, do you always have to be such a hateful little prick? Seriously. Clean up your mouth, try seeing the light of day outside your computer dungeon, and actually talk to people with some decency. Someone should slap you.

    PS – I think you meant “classical conservative centrism”–last I checked “centralism” isn’t a categorical term for political ideology. And I wouldn’t regard Dr. Phillies as a “right” libertarian at all. He’s one of the few that actually has a functional, pragmatic outlook beyond the Libtard-sphere.

    More later I’m sure…

  17. G.E.

    A.U. – Not “centrism,” centralism, which is a tenet of classical conservatism. Phillies is a classical conservative in his lust for and belief in the power of the centralized state, including but not limited to his desire to centrally plan the economy through trade regulation and immigration quotas. His ideology is thoroughly conservative in the classical sense — he’s just rejected religion in favor of the religion of the state.

  18. Austrian Economist

    Ok, touche on the semantics. I defer.

    All the same, enough with the snippiness. Get your rocks off in the real world.

  19. Michael Gilson-De Lemos

    Most of the initiatives in Florida are Libertarian-driven. We in fact created the process there, which at the time was hailed as a Libertarian triumph.

    DD is fine as long as rights are respected, and it is a key way to inform the public and expand support (as we are seeing on the civil unions question, which was non-existsent a few years ago) to see those rights are understood and respected.

    We’re working on an initiative to ban taxation in Florida and move to a voluntary system of finance. It will doubtless take several tries. Should we stop?

  20. TheOriginalAndy

    “G.E. // Dec 22, 2008 at 3:38 pm

    DD cannot possibly respect rights. How can it? What is it possible to vote on that doesn’t initiate force?”

    The same thing could be said about votes made by legislative bodies. In fact, the overwellming majority of anti-liberty laws are passed by legislative bodies and not through citizens ballot initiatives. The merits of a law have got nothing to do whether it was passed through a legislative body or through an initiative.

    I support initiative, referenda, and recall as a check & balance against the power of establishment politicians.

    Some people may say, “Well vote those politicians that you don’t like out of office and get people in there who are favorable to your cause.” This is far easier said than done, especially when one considers factors like gerrymandered districts, debates that don’t allow all of the candidates to participate, ballot access barriers that are difficult to overcome, big money special interest groups buying favors, the name recognition advantage that incumbents have, etc…

    Having said this, I don’t think that anything should be able to be passed through an initiative, just as I do not think that legislative bodies should be able to pass just anything, there should be limits on both methods of passing legislation.

    I believe that Proposition 8 (the anti-gay marriage initiative in California) is unconstitutional and should be thrown out by the courts, but for that matter I also believe that state licensing of marriage is unconstitutional and should be thrown out by the courts.

    Initiatives give people a chance to by pass legislative bodies that are corrupt and unresponsive. Issues such as medicinal marijuana, property tax limitation, stopping eminent domain abuse, and, spending limits on state government would likely have never seen the light of day if not for the initiative process.

    Referenda gives people the chance to repeal bad laws passed by legislative bodies before they go into effect. A few years ago in California there was a referendum to stop a socialist healthcare bill that would have forced small businesses with 20 or more employees to pay into a state run healthcare program. This would have really hurt small businesses in California as it would have driven many of them under or out of the state. Fortunately, the referendum killed it. A couple of years ago in Cinncinatti, Ohio the City Council passed a sales tax increase to build a new jail but fortunately it got killed through a citizen referendum.

    Recall gives people a chance to get a bad politician kicked out of office, the most famous example being the recall of California Governor Grey Davis back in 2003.

  21. paulie cannoli Post author

    Agreed with most of what Andy said.

    Small nitpick:

    I also believe that state licensing of marriage is unconstitutional and should be thrown out by the courts.

    I also agree that states should not have any power to license marriages, although I believe they should not be allowed to make them discriminatory in the meantime.

    But: Unconstitutional? How or why? Do you mean that the federal constitution forbids states from having marriage laws of any kind?

  22. TheOriginalAndy

    “20 G.E. // Dec 22, 2008 at 1:46 pm

    ‘Would the decision to have amended the state Constitution to ban gay marriage been better if it had been done by the state legislature?’

    Yes.”

    If the end result is the same it makes no difference.

    Medicinal Marijuana was recently passed in Michigan through a citizens ballot initiative. This is an increase of liberty in Michigan that would NOT have happened by relying on the corrupt Michigan state legislature.

    A citizens initiative in Massachusetts was passed that reduces the penalties for pocession of an ounce or less of marijuana to a $100 ticket. The initiative eliminated jail time, having a criminal record, and also reduced the fine. This is an increase of liberty in Massachusetts and it only happened due to a citizens ballot initiative, the Massachusetts state legislature refused to do this even after years of lobbying.

    My goal is to increase liberty, not worship politicians.

  23. TheOriginalAndy

    “I also agree that states should not have any power to license marriages, although I believe they should not be allowed to make them discriminatory in the meantime.

    But: Unconstitutional? How or why? Do you mean that the federal constitution forbids states from having marriage laws of any kind?”

    It violates provisions in the California State Constitution.

  24. G.E.

    If the end result is the same it makes no difference.

    I do not agree.

    Apparently, Andy thinks that if the U.N. sent storm troops into California to legalize gay marriage and marijuana, it would be all good.

  25. paulie cannoli Post author

    It violates provisions in the California State Constitution.

    Oh – sorry, my mistake. I agree that Prop 8 creates irreconcilable conflicts with pre-existing provisions of the California constitution, and thus can not be valid. I haven’t studied the California constitution enough to know whether marriage licensing of any kind violates some provision thereof.

    Your original phrasing – “I also believe that state licensing of marriage is unconstitutional and should be thrown out by the courts.” – seemed to me to be a broad statement about all states, rather than California in particular.

    Out of curiosity; what provision of the California constitution do all marriage statutes violate?

  26. Michael Seebeck

    Paulie @37,

    An argument could be made that marriage licenses and the restrictions thereon impede the tendering and enforcement of contracts.

    But AFAIK nobody has ever argued that in court yet, unless it happened in the nineteenth century.

  27. Michael Seebeck

    LJ @38, that could create results. The problem is that a lot of outreach is done locally if at all, and lately there seems to be in some circles a discouragement of doing that.

    Me, been there, done that, and with some of the most unique and unusual outreach events anyone ever has done in the LP (coffin race? Xmas parade float?). When done creatively, it can be fun, regardless of the results.

    There hasn’t been much fun in the LP lately.

    What you describe on the bulletin boards is just one way. The old outreach tool of the matchbooks in bars (before smoking bans) was another. At one drug rally we handed out screened lighters. One guy I knew printed up LP business cards at VistaPrint and went around stuffing them in keycard slots at local hotels. One totally zany idea I had that we never were able to find a manufacturer for was a urinal pad that said “Piss on the Democrats and Republicans–vote Libertarian!” There is no end to advertising ideas if people just pursue them.

    This is why I say our marketing sucks.

  28. Michael Seebeck

    Yeah, for me that was 2000-2003. My last major thing of that type was helping organize the LPCO 2003 state convention (which made money without any floor fees). My kid was born 4 days later. My time in CA has been greatly limited on outreach, mainly from commute and some internal issues that are not totally still resolved within the LPCA. Prop 8 has provided a vehicle to get back into that groove again (ditto AB1634 before it), and it does feel nice to be doing that again.

  29. Libertarian Joseph

    Michael: how about offer incentives? Turn membership into an mlm wherev recruiters earn money. That should create the financial incentive, and when you mix that with the philosophical incentive..

  30. VTV

    http://www.funnyordie.com/videos/c0cf508ff8/prop-8-the-musical-starring-jack-black-john-c-reilly-and-many-more-from-fod-team-jack-black-craig-robinson-john-c-reilly-and-rashida-jones

    The concept here is a violation of seperation of church and state.

    You are going to get some bad results with some refferendums, but at least the PEOPLE are making the decision for themselves, not some corporate whores in the government. We are forgetting that many refferendums PASSED to legalize medical marijuana, and even personal use in some states.

    It is a “Free Market” of laws. The people being the consumers get to decide what product will succeed and which one will fail. That’s why it is safer in the long run than tyranny of the minority. The people will buy bad products in a free market, learn from their mistake and then not buy that product again. OR you can wait around for a corrupt politician to find it in his/her best interest to get rid of the bad law. Not likely.

    Right now we are seeing huge tyranny of a minority. Which is just as bad. And to be honest to me is far worse. We talk about the big bad evil 51% to 49% equation that almost never happens. How about the .0000176% (Congress, Senate, President) telling the 99.999% that we are going to war when the people are polling that 76% of the people don’t want to go to war? Is that Libertarian? Is that freedom?

    The Irish Political party Sinn Fienn was able to stop the Lisbon treaty that would of deprived it’s people of a lot of soverignty. How did they do this? WITH REFFERENDUM. With DIRECT DEMOCRACY. In the rest of the countries in the EU where they didn’t have such a system the people in their governments just ignored the please of their people and were willing to sign regardless. That would be tyranny of the minority in the highest sense wouldn’t it?

  31. Michael Seebeck

    I’d have to think about that, LJ. MLMs tend to repulse me on the surface. One too many pushy Amway people in the past, I guess.

  32. TheOriginalAndy

    “G.E. // Dec 22, 2008 at 4:46 pm

    ‘If the end result is the same it makes no difference.’

    I do not agree.

    Apparently, Andy thinks that if the U.N. sent storm troops into California to legalize gay marriage and marijuana, it would be all good.”

    Where did I say anything about supporting the United Nations? The United Nations is anti-liberty.

    I don’t consider having initiative, referenda, and recall as a check and balance against the power of the legislature is the equivalent to supporting an anti-liberty organization.

  33. G.E.

    Andy – I misread what you wrote. I thought you were saying the federal government could intervene in the internal affairs of the state, and it would “make no difference” so long as the outcome were the same.

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