Now that the election is over, and votes have been cast and counted, the debate about the marriage propositions in three states brings about a new question.
Should civil liberties and constitutional rights be decided by a simple majority vote?
Civil liberties, and equality under the law seems like a no-brainer to the modern American. After all, we no longer tolerate racial or gender based inequalities, and scoff at those who do. Our constitutional rights at first glance, do seem to support the notion of all men being equal, and the general interpretation by the average citizen believes that our founding fathers believed in personal liberties, and equality across all lines. How soon we forget the legal battles waged in the US over such now common place opinions to guarantee the rights of individuals to be treated fairly, and equally under the law.
How often we overlook the ability of state based constitutions to be amended or revised by a simple majority vote by the populace. Even those rights that would interfere with what we consider to be civil rights, and thus automatically guaranteed.
Let's take a brief look at the race based civil rights movement that started shortly after the abolishment of slavery, and raged on until the 1960's. In 1877 citizens and law makers alike began creating and supporting local and state laws that enforced segregation, and restricted Black American's ability to vote. Clearly the majority supported the Jim Crow laws, and used the power as a majority to keep the laws in place.
So what changed? Court cases. Many, many court cases. Eventually the US Supreme Court had to rule on the wide array of civil rights cases brought before them over a period of time, and after the court's implementation of the Equal Rights Clause in the 14th amendment, the US government was able to introduce the Civil Rights Act of 1964. The government had to introduce it under commerce laws, however, to circumvent the limit of congressional power on enforcing court rulings.
After nearly two months of debate, and filibusters, the bill was passed. Even then, the citizens of the US fought the new anti-segregation laws with civil disobedience, protests, and sometimes outright violence.
In the case of civil liberties in matters of race, the US Supreme Court and the US government had no choice but to step in, and force equality even though it was a dangerously unpopular decision. Had civil liberties and rights not been mandated, against popular opinion, on a federal level and continued to be decided by majority votes and left to states, there is no guarantee that racial equality under the law would exist today. It's possible, but not guaranteed. And even though the civil rights are now guaranteed, it took 87 years before such equality was made possible.
The average citizen, such as myself, would think that looking back at historic civil rights movements we would automatically adopt some sort of legislation that would inherently protect US citizens from various forms of legal discrimination, and, continuance of such discrimination by way of majority votes. It would only be logical to use our past experience to determine how civil rights and equality should be treated under the law, and, that it's probably a bad idea to leave fundamental rights up to the general populace.
It just isn't that simple.
The way that our constitution(s) and government is set up, is a system of checks and balances that guarantees the populace the right to determine how they are to be governed by way of voting. I personally feel that there is some balance between preserving and insuring civil rights sans drawn out court cases for every individual civil rights issue without negating the constituency's right to vote on and decide issues and matters of importance, on a state level.
The very first issue I decided to look up was a basic, agreed upon enumeration of human rights. Those rights that are not granted by and cannot be taken away by governments. I found the Universal Declaration of Human Rights as outlined and accepted by the UN generally assembly. I needed to know if equality was indeed a basic human right. I was pleasantly rewarded with an answer in the first seven articles of the declaration. Most of which deal with equality, and specifically article seven which states:
All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.
Excellent, so now we do know that equality under the law is a basic human right. To me, this is important to recognize. The US is bound by treaty to adhere to the international laws of human rights, as shown in this Executive Order 13107.
An average layperson, such as myself doesn't see a large amount of obstacles in adopting such language of equality under the law into our federal constitution. In fact, the 14th Amendment has very similar language regarding equality under the law. Read an interpretation of the 14the amendment.
The problem, however, that has been brought to my attention is that if there were a strict amendment or revision regarding equal application of laws to help stop discrimination by way of majority vote, the citizens may be disenfranchised by not being allowed to weigh in on important matters of their governance, and that it opens the door to more government based regulations and law making than is healthy or desired. Questions such as who and how such amendments would be made, under what authority, and who makes the distinction of such rights come to the surface.
I see a precedent made with previous civil rights cases, and with guidelines such as the Declaration of Human Rights and the US federal constitution as being a solid way to amend or revise our constitution(s) in a way that will not disenfranchise the general population. First and foremost, I think that any revision of this type should be made on a federal, not individual state level so that it's application is uniform.
I would propose that, under the article seven of the Declaration of Human Rights, and, the 14th amendment of the US constitution, we could feasibly amend or revise our constitution and add a clause that states amendments and revisions of the constitution(s), laws, and rights must be applied equally and uniformly for all US citizens, with reasonable regulations and restrictions, as already stated in our constitution.
Those reasonable regulations and restrictions generally apply to rights or privileges that require legal consent, and legality of the action, and protections for certain parts of the community. For example, such regulations could include regulations of consent regarding minors, mental competence, mutual agreements, and insuring that the activity is legal in the first place.
Uniform application of the law isn't something new in the US. If something is against the law, that criminal activity is illegal for all citizens, not just one group of citizens, etc and so forth.
In that regard, the general population can still vote to change their own state's constitution, but those changes will affect the entire populace. This, to me, is the only way to allow majority vote decisions, while preventing one group from voting the rights of another group down.
I will use the example of gay marriage, partly because it's up for debate and it inspired this post.
In the US constitution, the 14th amendment outlines the right to equal protection under the law, and it's interpretation specifically regarding marriage is as such:
Unlike the shifting definitions of the
‘‘privacy’’ line of case, the Court’s treatment of the ‘‘liberty’’ of familial
relationships has a relatively principled doctrinal basis.
Starting with Meyer and Pierce, 644 the Court has held that ‘‘the
Constitution protects the sanctity of the family precisely because
the institution of the family is deeply rooted in this Nation’s history
and tradition.’’ 645 For instance, the right to marry is a fundamental
right protected by the due process clause, 646 and only ‘‘reasonable
regulations’’ of such relationship may be imposed. 647
Marriage is interpreted as a fundamental right in our own constitution, and as a fundamental human right by the Declaration of Human Rights, article 16:
(1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.
It would seem, then that marriage is a fundamental human right. If my idea were to ever make through the government process, the debacle of gay marriage could still be voted on, but the end result would be applied uniformly.
For example, the propositions voted on during the past election was to explicitly define "marriage" as being between a man and a woman. In doing so, the constitution has been amended or revised to exclude a specific group of people - homosexuals - from the fundamental rights and protections of marriage by the use of specific language.
If the federal constitution were amended or revised to include a uniform application of rights, that proposition would not have been on the ballot. Instead, the populace would have to decide if they want to abolish "marriage" altogether, and implement civil unions instead. In that way, the group that is fighting to "preserve the definition of marriage" from including homosexuals could do so, by implementing civil unions as the standard legal right. They would be free to have religious marriage ceremonies, but all legal aspects of it would now be called civil unions, for heterosexuals and homosexuals alike.
The majority would have their say, and their amendment, and no one would be excluded from the state's constitutional laws, or be isolated or banned from fundamental rights by way of majority vote.
As a lay person, I do not know all of the legal nuances and obstacles that could prevent such a federal amendment from being implemented. But I do know that even without that, the process itself would take a very long time, I'm certain that there are plenty of legal problems that need to be addressed first on top of that.
That doesn't dissuade me, however, from the idea that there is some way to bring civil rights, equality, and popular votes to a happy balance. Of course, my novice opinion on constitutional law is far from perfect, but I am merely offering this idea as a premise, a brain storm if you will, to help fuel a progressive civil rights movement so that future generations aren't forced to fight for equal protection and equal access to fundamental rights, all while preserving the checks and balances of the government we have.
Amending our constitutions, protecting certain amendments from being changed by law or majority votes, and civil rights are not radical ideas. This isn't a radical proposal. We've done this before, we can do it again.
But at some point, I do believe as a country bound to protect the rights and freedoms of humans, we have to stop and ask ourselves if it's really OK to decide civil, human, and fundamental rights by popular vote. Full well knowing that bigotry and hatred exist, right here in our own country, we need to ask ourselves if amendments that create inclusive rights and protections are something we shouldn't be considering.