Should California Pass Prop 8?

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It's the people, stupid. Forgive the riff on an old President Clinton campaign cliché; it's not meant to insult. It's meant to convey the answer to the rather basic question that confronts voters on Prop 8: who ultimately controls the state constitution (or the U.S. Constitution for that matter), the citizens or the judiciary?

Even to ask the question should suggest an obvious starting point for agreement: citizens drafted it, and citizens amend it. The judiciary is charged with interpreting it. Nobody has ever suggested that the California judiciary drafted the state constitution. Not even the most activist judge would admit that judges may freely add provisions to a constitution. So we should be able to agree on the basics of how a constitutional government works.

Next question: How far can the judiciary go in "interpreting" laws, including constitutional provisions? Or phrased differently: Do the citizens of the state have any say whatsoever in approving of, or rejecting, an "interpretation" by the California Supreme Court of a provision of the state constitution?

Let's look at the marriage decision from last May. Once you get through all the historical and legal analysis, the Supreme Court basically held that their interpretation of the California state constitution is that marriage could not be restricted to one man and one woman.

Californians supporting Proposition 8 would say to the Court: "We disagree with your interpretation. We're convinced the constitution was so clearly to the contrary that to even address the issue was beyond your authority as judges. You in effect created a new constitutional provision. However, all of those objections aside, there are basic 'checks and balances' written into our constitution.  As citizens we can fix what you did. We determine what our constitution says and so we'll just change it to make it clear what we thought was always clear: marriage is between one man and one woman." Problem solved.

The opponents of Prop 8 argue, however, that some constitutional "rights" are too important to be left to a vote of the people. I don't think they're intentionally being dismissive of majoritarian rule. But they are wrong about the source of minority rights in a constitutional democracy. Check Article 1 of the California constitution, or the Bill of Rights. Those were adopted by the citizens of California or the United States, not judges.

Can we trust judges to legislate new rights? Our Founders didn't think so.

George Washington, in his 1796 farewell address, said this:

"If, in the opinion of the people, the distribution or the modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed."

Prop 8, among other things, is a serious attempt to reclaim control of the California constitution by its citizens. It's partly about marriage, of course. But it is certainly also about the fundamental question of where ultimate constitutional authority rests. And that would be with the people, not judges.