Opponents of Prop. 8, the anti-gay marriage initiative, have suddenly discovered the flaws in the Initiative process. Like Captain Renault in Casablanca, bloggers and commentators interested in gay rights are shocked by the ease with which perceived "individual rights" of minorities can be extinguished by the majority of voters.
They shouldn’t have been surprised. This has been happening for a long time. The voters have had many chances to show their contempt for individual liberties.
The difference is that a powerful and vocal constituency now see themselves as the victims of the process. A smaller, less powerful interest group, those concerned with the rights of criminal defendants, have whimpered in this wilderness for many years.
It is only a slight stretch to compare this attitude with the lesson derived from Christian disinterest in the fate of disappearing Jews in Nazi Germany ... you know, "when they came for the Jews, I didn't care because I was not a Jew ... now when they come for me, there is no one to complain..."
In 1982, the voters understandably passed a measure ironically titled "Victim’s Bill of Rights", which amended Article I of California’s constitution, reversing a generation of court rulings that "favored" criminal defendants. It included a broad wish list designed by frustrated prosecutors - limiting California courts to minimal federal rules of evidence, especially relating to 4th Amendment issues; requiring "truth-in-evidence" to prevent judges from excluding evidence prejudicial to defendants, such as prior crimes; eliminated the defense of "diminished capacity", returning the law relating to mental illness to the 18th century definition of insanity; purporting to restrict plea bargaining.
In 1990, Proposition 115, the "Crime Justice Reform Act", also called the "Speedy Trial Initiative", authored by a L.A. deputy District Attorney (Sterling Ernie Norris) and the state D.A. association, tilted the playing field further toward the prosecution. Hearsay was permitted in preliminary hearings, defendants were forced to disclose their defenses, among other "reforms."
Now, Chief Justice Ron George, writing for the 6-1 majority of the California Supreme Court, upholding the constitutionality of the the anti-gay marriage initiative which the voters passed in 2008, has implied that he and his brethren have serious misgivings about the ease with which California’s constitution can be altered. In a fine example of the philosophy of judicial restraint, George and his cohorts claim to set aside their qualms and "personal opinions" and decided the case solely on "the law."
The nation’s founding fathers wisely made the process of amending the federal constitution resistant to momentary moods of the majority, requiring super majorities in Congress, or unwieldy constitutional conventions, ratification by two thirds of the states, a lengthy process that insures thorough vetting. Even so, mistakes have been made, Prohibition being the most notorious example.
In the Progressive Era of the early 1900's, Senator Hiram Johnson championed direct democracy as an end run around corrupt state legislatures, which were in bondage to hide bound big business interests which regularly squelched reform measures. Recall, referendum, and initiative were intended to redress the perceived flaws in the system, which impeded needed reforms to "liberalize" the society.
These days, the California legislature is totally constipated, hamstrung by other seemingly brilliant ideas swept in by the initiative process over the past thirty years - proposition 13 (the Jarvis Initiative, limiting increases in property taxes), term limits, and balanced budgets.
California’s Supreme Court used to be a respected protector of individual rights, its holdings followed by other courts around the country. Beginning in the 1970's and continuing today, advocates of "judicial restraint" and "strict constitutional interpretation" have forced the Court to retreat to a reactionary stance that has made the state comparable to, if not worse than, the most repressive states in the South, minimizing individual rights in favor of the will of the majority of the people.