Why have referendums on basic rights?

11 thoughts on Why have referendums on basic rights?

1. My knowledge comes from musty, 15-year-old law school learning, but even in Texas LGBT individuals were able to file successful employment discrimination lawsuits under the civil rights acts based on gender (i.e. a man who liked women was preferentially treated to a woman in the same situation). However, public interest lawyers have been working on court challenges for 30 years on equal protection grounds; either they haven’t discovered the winning argument or the judiciary has become too hidebound and reactionary (even moreso than the electorate) in the interim.

2. That said, interracial marriage in the late 50s/early 60s was much more unpopular than gay marriage is now (the Wikipedia article on anti-miscegenation laws had 96% disapproval in 1958), and that didn’t stop an obvious injustice in being righted in Loving v. Virginia just years later. Maybe it has something to do with the multiple layers of mean-spirited legislation that ring the issue, starting with DOMA, which thankfully is being meaningfully challenged by the State of Massachusetts.

3. The problem is that while the courts are somewhat shielded from direct electoral politics, no branch is completely apolitical. The Warren Court’s pioneering reforms created a reactionary backlash and ever since the conservatives have been packing the courts with reactionaries.

   We have never lived up to our ideals. The “privileges and immunities” clause of the 14th Amd. was essentially written out because the Reconstruction-era courts refused to interpret it as intended. Courts don’t do very well at protecting unpopular minorities from the public, neither do legislatures and neither do executives. Sometimes the branches of government are a bit ahead of the public and sometimes behind, but the two are never decoupled, and the only was justice even works is a slow grinding campaign to get the majority to cede rights.

   Ultimately, it’s all the polity. Whether by referendum, representative, or right and review, our willingness to extend the same rights to all of us is dependent on the society and the polity. That’s why we should all be ashamed today. Ashamed and sick at heart.

4. yeah it’s nonsense; voting on someone’s rights to have the same rights as others, just on the basis of who they love, is unjust. thankfully lgbt warriors and allies are constantly fights for our rights and they have won and lost many battles. but we are slowly making progress. i’m so thankful that obama has promised to end several anti-lgbt+ bills; unfortunately he doesn’t wholeheartly support marriage rights, but i know we will win that battle soon.

5. Yes, what would the vote have been in Arkansas in 1958 if desegregation had been put to a vote? Or if Loving v. Virginia had been subjected to referendum in 1967 in the state where the suit was filed?

   Betcha justice would have lost by a bigger margin than 57-43. The sooner we get the inevitable 5-4 victory from SCOTUS the better. But even that’s a few years away.

6. Rights are always going to be up for a vote; the only question is who votes, and in what context. Historically and cross-nationally, it’s not at all clear that judges are more supportive of left/liberal positions than legislators or the voting public. That said, their biases tend to be in a predictable direction: judges & lawyers are wealthier, older, and much more educated than the population at large, in addition, of course, to having gone through legal training. On some issues, it’s clear those biases will be ‘good’; on others, not so much.

   I certainly agree about the substantive issue here, but I don’t think legal training conveys expertise about questions of, essentially, moral and political philosophy. It seems to me that randomly chosen statistically representative deliberative assemblies would ameliorate both the elite-dominance worries of populists and the rational-voter-ignorance worries of their opponents.

7. (Judges are also, of course, whiter and male-er than the general voting population, though off my head I can’t recall how the federal judiciary compares to the House / Senate. Worth keeping in mind.)

8. It’s also worth noting that voters always can yank rights (either directly or indirectly; the ability to yank rights or to create them is a condition of democracy); it’s just a question of what procedures we require the citizenry to go through in order to yank ’em. In CA, those procedures impose minimal hurdles, whereas at the federal level it’s considerably more difficult. Nonetheless, the 14th amendment was not brought down from Mt. Sinai and written in stone: it can always be changed by a sizeable enough majority.

9. Nonetheless, the 14th amendment was not brought down from Mt. Sinai and written in stone: it can always be changed by a sizeable enough majority.

   Thats right about the time when voting from the rooftops starts to look damned attractive. Yes, the rights are ultimately defined by the majority, but that doesn’t make it democracy. Its also worth noting that these United States are not a democracy but rather a group of constitutional republics bound together by a strong federal system which is also a constitutional republic. Once you start monkey wrenching on basic rights. The founding ideals of the United States, while not always lived up to, revolve around maximized liberty. all of the 25 or so distinct rights outlined in the first 10 amendments are explicitly individual rights, limits on the authority of government in favor of individual citizens. The bulk of what has been added have been additions to the rights of individuals, with the most obvious exception quickly repealed. Once you start using the constitution to limit the rights of individuals you’re essentially engaging in treason, regardless of how many assholes you have behind you.

10. I hope this makes Americans understand why promoting democracy is a bad idea in many parts of the world.

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