(Please note: This blog is drawn from my comments at a October 26, 2012 conference at Hamline University sponsored by the Hamline University Law School that discussed the two constitutional amendments.)
The case against the Marriage and the Elections amendments can be made on many grounds. But one argument often overlooked is that their proposal and perhaps adoption by the people represents what America’s constitutional framers feared most–the tyranny of the majority.
Consider the context that influenced the framing of the Constitution in 1787. On the one hand the framers feared strong central authority and power as exemplified by King George III. Our American Declaration of Independence is literally an indictment of the king. Conversely, events such as Shay’s rebellion 1786 instilled a fear of mob rule and the instability that accompanies it. Thus, the writing of the Constitution set a task: Create a government powerful to maintain stability yet not too powerful to threaten individual liberty.
This problem of politics is the subject of the Federalist Papers. According to Alexander Hamilton and James Madison in Federalist 47 and 49, "all government rests on opinion" (Federalist, p. 329). Public opinion is composed of the sentiments and passions of the majority of people organized together for particular purposes. Arguably the strength of popular government is that it rests upon public opinion, drawing its democratic impulse and authority from the consent of the government. Yet, the weakness of republican government also rests upon public opinion. Alone, humans can be reasonable but not in crowds, at least this is the sentiment expressed in the Federalist. Crowds and the crowd sociology turns individual thoughts into restless sentiment and passion. Public opinion is both popular sentiment and popular sovereignty. The sentiment of public opinion is the ruler in a popular democracy yet this sentiment is not firm but unstable, subject to frequent changes, and to fits of passion and excess. But the real danger is how such public opinion can decay and become destructive, degenerating into a faction.
What is a faction for Madison and how do factions relate to speech and public opinion? According to Madison:
By a faction, I understand a number of citizens, whether amounting to a majority of minority of the whole, who are united and actuated by some common impulse of passion, or interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.
Madison is saying four things about factions. One, people join factions because of some common interest or, two, because of some common passion. Three, factions can either be composed of a minority or a majority of the population. However, while Madison is concerned about both types of faction, his real concern is with majority factions because the regular votes of the majority and the weakness of the minority will prevent the latter from being a real threat to others. Finally, a faction is not defined as simply any band of people who share common impulses or interests. Their association must be destructive of the rights of others or of the interests of the entire community. The latter suggests that there is an identifiable common good that can be known and should be defended . Individuals banding together, can do great things and pursue the public good, but they can also let their passions and interests run wild, thereby threatening the rights of others and the public good.
Individuals have a propensity to band together for common base interests and desires and this pursuit of desires can constrain or distort the rights of others including the community.
If a faction is simply a small portion of our society then the majority can outvote them. But what if a faction is composed of a majority, then what? This is the question Madison asks and in Federalist 10 he states the core problem facing the framers:
When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed.
The issue for the framers was how to preserve individual liberty and popular government from the threats of majority faction. Phrased otherwise, the problem, as Alexis DeTocqueville would later ask, is how can the American republic deal with the threats of the tyranny of the majority? Another way of stating it: How to balance majority rule with minority rights? How does one allow for majority opinion to rule, as it should in a popular government, but not let it become destructive to minority rights?
The constitutional solution is a complex combination of ways to break up political power and slow down the forces of political change. It involves appeals to separation of powers, checks and balances, federalism bicameralism, and the enabling of a robust competitive political process to prevent anyone group from getting too powerful. Bit is also included eventually in 1791 the adoption of a bill of rights.
The Bill of Rights takes some issues out of politics. As Justice Jackson eloquently stated in West Virginia v. Barnette:
The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to . . . freedom of worship . . . and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.
The essential problem for American democracy is balancing majority rule versus minority rights. Majorities get there way on most issues, but not when it comes to minority rights. And the problem with ballot measures such as the two constitutional amendments is there legacy in targeting minority rights.
There is unfortunately an ugly side to American politics where fear and prejudice have prevailed. The Salem witch trials, slavery, denying women the right to vote, the McCarthy era, and Stonewall. Majorities do ugly things and the constitutional framers were correct that pure majority rule needs to be tempered by minority rights.
Seldom do ballot measures and votes by majorities protect minority rights. Barbara S. Gamble’s “Putting Civil Rights to a Popular Vote,” 41 American Journal of Political Science 245 (1997) examined local and state ballot measures related to AIDS testing, gay rights, language, school desegregation, and housing/public accommodations desegregation), from 1960 to 1993. that Minorities almost always lose. In the eighty-two initiatives and referendums surveyed in this Article, majorities voted to repeal, limit, or prevent any minority gains in their civil rights over eighty percent of the time.
Gamble also found that measures aimed at limiting the civil rights of minority groups were much more successful than other types of initiatives and referendums. She noted that a previous study of ballot measures between 1898 and 1978 found that only 33% of measures succeeded. Low passage rates change dramatically when it came to the limitation of civil rights is the subject of the proposal. In this case, 78% of the 74 civil rights measures that she studied resulted in a defeat of minority interests.
Gamble's findings are consistent with those of political scientists Haider-Markel and Meier. Mei-er and Haider-Markel's study on gay ballot initiatives found that 77% of those seeking to repeal the rights of lesbians and gays were successful in doing so, and in the 13 attempts to extend rights of gays and lesbians, 84% were unsuccessful. Gays and lesbians, as well as other minority groups, lose when their rights go to the ballot box.
What does all this mean? Direct democracy and majoritarian politics inconsistent with the broader substantive values of the Constitution and Bill of Rights which the Framers understood. They recognized the problems of the tyranny of the majority and the threat that the ballot box poses to individual liberty. In the case of the marriage amendment, it singles out a specific group for a special disability, in ways that the Supreme Court found unconstitutional in Romer v. Evans. Gays and lesbians (and transgenders too) are the classic discrete and insular minority that the Supreme Court speaks of in footnote four of United States v. Carolene Products. Groups unable to defend themselves in the normal political process are those which the judiciary are supposed to protect against the tyranny of the majority.
Moreover, Carolene Products also spoke of special judicial scrutiny in cases where legislation circumvents the normal political process and closes it down. Normally we say that if you do not like a specific policy use the ballot box to change it. The Elections amendment targets the political process, seeking to close down and make it more difficult to vote. It and the Marriage amendment, by constitutionalizing these policies, aim to circumvent the normal legislative process and place political change beyond the reach of ordinary legislation.
The opening three words of the Constitution are “We the people.” Our nation is one that is supposed to be inclusive, respecting the rights of all to compete fairly and equally in the political process. The tragedy of the Marriage and Elections amendments is how they undermine the promise of We the People and hoe they are inconsistent with the values that our Framers endorsed.