Thursday, February 16, 2012

Voting on Civil Rights

On a recent episode of Real Time, Reihan Salam argued that it would be a positive thing to hold direct votes on certain civil rights issues, such as gay marriage, rather than achieving equality through the courts. Rev. Al Sharpton took issue with Salam, pointing out that if people had voted on civil rights he would still be riding at the back of the bus, and with a "bad eyed driver" so would Salam. In large part, Sharpton is correct - had civil rights been expected to pass on a state-by-state basis some states would have acted promptly but others would have been slow to act, and we would likely still be waiting on a number of states.

I'm not sure what the concept is behind popular voting for civil rights. If there's popular support for a civil rights movement but for some reason the nation's legislatures are slow to act, court action addressing the situation is not likely to be unpopular. If there's a lack of popular support, direct voting won't bring about change, and it would thus fall on legislatures and the courts to implement any change against the will of the people.

The theory appears to be that if you have a few successful votes around the nation, you will start to shift the balance and eventually create a tipping point at which people will back away from their prejudices and accept that they, also, should support the civil rights movement. Reihan focused on Roe v. Wade as opposed to segregation and Jim Crow, and Sharpton was correct to bring the issue back into focus.

Reihan can protest that had reproductive rights been allowed to progress on a state-by-state basis we would not have abortion (and contraception) rights as a front-and-center issue in every federal election. But if the objection people have to Roe v. Wade is that stripped states of their rights, and imposed on certain states a policy that the majority of their residents found objectionable, why isn't the same true of the civil rights movement in general? Even in states that saw violent opposition to the civil rights movement, there is now a general acceptance that segregation is neither "equal" nor consistent with our nation's values.

Another objection to the notion that important civil rights issues should be resolved by plebiscite is that we live in a representative democracy. As a matter of routine, important decisions are made by our elected representatives in part under the theory that they're better informed than the people at large, and are better positioned to avoid the passions and prejudices of the day. Why would we want to add an asterisk to our system of government, such that we would revert to a direct democracy on those issues over which the people are most passionate or prejudiced? That doesn't sound to me like a recipe for a state-by-state transformation of the nation, with gradual realization that other groups of people deserve additional civil rights. It sounds to me like a formula to preserve the status quo in much or all of the country.

The plebiscite approach also raises a question of finality: If people can vote to grant civil rights, why can't they also vote to take them away? If we are supposed to get some sort of finality and social acceptance of the grant of civil rights by proceeding state-by-state, how is that achieved when every election cycle has a new initiative to repeal those rights on the ballot. When the Supreme Court has rolled back the protections of cases like Roe v. Wade, or policies such as affirmative action, the tendency has not been for legislatures and ballot initiatives to move to protect the status quo. Quite the opposite - we see immediate activity to roll back rights that had previously been accepted or assumed, and some legislatures immediately setting up legislation for the next "test case" to push through the courts in the hope of achieving a further rollback of rights.

In the context of gay marriage, when the issue has been placed on the ballot in states like California we have already seen well-funded "anti-" campaigns run by outside groups that oppose gay marriage. If repeal is permitted, that would happen in most or all election cycles. If repeal were not permitted, the argument for resolving civil rights issues by plebiscite becomes incoherent.

Those who favor the "state's rights" or plebiscite approach often also express a certain contemptuousness for the Surpeme Court, speaking of it as an unelected body, a small number of elites who get to decide very important issues, and that the public has little recourse even when the decision is against the overwhelming will of the people. So I look at my copy of the Constitution (1780), I review the case in which the Supreme Court established itself as the final arbiter of constitutionality (Marbury v Madison, 1803), and I say to myself, "Wow - how is it that nobody has noticed this until now?"

No, what I actually do is again note that our system of government was designed to have an independent judiciary, a Supreme Court that would render opinions on matters of constitutionality, and that for all of its flaws the approach has held up for more than two centuries. I note also the contextual nature of the argument - those who criticize the elitist, non-democratic nature of the Supreme Court when it is expanding civil rights do not express similar sentiments when the Supreme Court rolls them back, nor do they express similar sentiments when the Supreme Court expands other rights that they support.

Nobody is suggesting anything more than a gut check for which issues should be taken out of the Supreme Court's hands and (supposedly) resolved gradually, over time, by plebiscite or state legislative action. If you shake your fist angrily that Roe v. Wade deprives state and local governments, and the people they represent, of their right to fashion laws and outcomes that fit their circumstances, why are you celebrating D.C. v. Heller for depriving local governments of a tool they view as important to suppressing crime and keeping their streets safe?

When I look back on the civil rights movement and cases like Brown v. Board, and compare present level of controversy to Roe v. Wade, I don't see that public acceptance of civil rights is tied to how those rights are implemented. I see that there are people with strong religious and moral objections to abortion rights, and even to contraception, who don't care about policy arguments, they want a "no ifs, ands or buts" ban, or something very close to it. I can respect strongly held moral beliefs, I can respect adherence to the teachings of your church, but I don't believe that either should trump either constitutional process or efforts to form sound public policy.

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