Undemocratic?

One of the most common excuses homophobes and homophobe enablers use in defense of their position is that anyone who seeks to advance LGBT rights through the court system has no respect for democracy, because the people have allegedly spoken, and LGBT persons and their straight allies just can't accept that.

Rather than giving the cliche counter-argument about two wolves and a lamb deciding what's for dinner, allow me to effectively disprove their prima facie argument.

Imagine, for a minute, if Congress passed the Respect for Marriage Act. However, this hypothetical bill not only required the federal government to recognize same-sex marriages, but it required the states to do so, as well, in much the same way as the Civil Rights Act of 1964 and Title II of the Americans With Disabilities Act also applies to the states, even though the states got no more direct say in the application of those laws (as opposed to a constitutional amendment) than the citizens did.

Ok, now a state is required under a federal statute which it did not approve to do something it doesn't want to do. The voters of that state set up a voter initiative to disallow recognition of same-sex marriages, and the amendment passes.

In the event of that conflict, which law should be supreme? Of course, the federal law should be Supreme.

At this point, homophobes are thinking to themselves "but at least an Act of Congress was democratically enacted!"

Now, here's where the disproving of homophobes' prima facie starts to come in:

An Act of Congress is, indeed, democratically enacted.

However...

SO IS THE CONSTITUTION!

In fact, the Constitution is, in and of itself, even more democratic than a mere Act of Congress! An Act of Congress requires a mere majority to enact; a constitutional amendment requires a supermajority!

52% of Californians want marriage to be exclusively between a man and a woman? Well guess what! Two thirds - not just 52%, but two ****ing thirds - of both houses of Congress, and 75% - not fifty-two, but seventy ****ing five - percent of state legislators decided the following:

1. There are certain rights that the government cannot infringe upon, even if the majority wants them to,
2. This requirement applies to the state governments as well as the federal government (under the "incorporation" doctrine), and
3. These rights are not limited merely to those the Constitution explicitly states (this was stated in the Ninth Amendment).

So guess what? Proposition 8 was "democratically" enacted? So was the Constitution! Homophobes often rely on the argument that those who seek redress through the courts are being "undemocratic." In fact, it's the exact opposite; we are using a tool that democracy gave us to enforce our rights! We were given this tool by democratic enactment, and as a direct result, we are not ignoring democracy; we are embracing it.

 

The trouble seems to be an interpretation of the word "democratic", which many take to mean that voters get to decide. It's a rather silly interpretation in light of what the U.S. is - not a direct democracy, but a republic with democratic representation. While the states have various ways of letting voters have a say through referenda, this doesn't negate or override the other systems that make up the republic, namely the Constitution and its interpretation by the courts.

So while some systems of the republic may operate in an 'undemocratic' manner, you're quite right that those systems were established through the workings of democracy.

Much of the dispute really concerns how much power the Constitution actually gives the courts, and where the division of power between states and the federal government lies.

 

Eeeeeeh... that's not exactly what I had in mind.

Here, let me try to word this differently.

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The voters do get to decide... 100% of the time.

The voters democratically decided to give their legislative powers to freely-chosen representatives.

These legislatures, using the power that the people themselves gave them, decided to adopt the Federal Constitution, and they voluntarily chose to adopt the Fourteenth Amendment thereof. Those legislatures who draw their power directly from the people also decided that the terms of the Federal Constitution preempt anything that those states might want to do.

Those same legislatures further voluntarily signed on to give Federal legislative powers to a Congress... who would also be chosen by the same electorates that chose those legislatures.

The Congress - whose powers are derived directly from the people - chose to give the power to enforce the Constitution (you know, the body of law that the legislatures - deriving their powers directly from the people - decided was the Supreme Law of the Land) to judges who served for life.

All of this was done via free, voluntary democracy.

The people have the power... but we forfeit some of it because we don't want to do it all ourselves. We chose these people to be our political "agents," so to speak, and, as a result, just like regular agents, they have the power to bind us... and we allowed that to happen.

And then, these agents turned around and relinquished some of their power to others. They did this on our behalf, and as political agents, they have the power to bind us... so we are bound by that.

But, remember, all of this started off completely democratically!
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Does that clear it up?

 

I don't think we're really in disagreement. If the people wished to, they certainly could exercise their power to limit the power of the entities that they, through their democratically elected agents, created. It happens that they created a system of government where that's purposely sometimes difficult to actually do.

I've watched with some alarm as some people try to move this country more in the direction of direct democracy, away from the representative democracy that has worked for us from the adoption of the Constitution. Perhaps not with absolute perfection, but it's a very good system when not abused. I'm inclined to think that some of this movement toward more direct democracy is a reaction to abuses of the system and a government that seems increasingly less responsive to its people.

 

Agreed. The people have freely and voluntarily decided that overriding the Constitution requires more than 52% of the people.

To the extent that it doesn't conflict with the Constitution, then yeah, 52% would be a perfectly sufficient amount of people.

However, it takes more than that to change the Constitution... and our ancestors voluntarily made that decision.

If homophobes and homophobe enablers want gay marriage bans that bad, they can get a federal constitutional amendment... if they have the consensus for it. But a simple majority isn't going to cut it.

And why not?

In 1776, direct democracy was impractical due to the sheer size of the country. Nowadays, we have the Internet, cars, and aviation, making the size of the country more of a non-issue than ever before.

Direct democracy is preferred when it is practical and plausible... I see no reason to change that general rule.

Define "abused?"

Eeeeeeh... no.

The government has not lost touch with the people... the people have lost touch with the government.

Honestly, how many people do you know actually monitor their elected officials' activities, and write to them on a regular basis? Even if you do it yourself, you know darn well that that makes you the exception, not the rule.

Very very very very few people actually get involved with politics, and then, get mad because their elected officials aren't "responsive to their needs."

What needs? You didn't tell them about any needs!

The elected officials are friggin' human! They cannot read your mind!

Why don't you try giving that a shot... then get back to me!

 

It's not a question of practicality. See below.

Preferred doesn't necessarily mean wise. In a direct democracy, a majority can be persuaded to not only vote away the rights of those in the minority, but their own as well. It's also a recipe for instability, as law and policy become subject to fickle majority opinion.

Direct democracy is as much an enemy of equality as any other system of government. Taking the example of homosexuality, it is highly questionable whether it would ever have reached the point of being decriminalized, never mind those relationships being given any kind of legal status under a system of direct democracy. The assumption that it would do so without legal challenges aimed to preserve rights in the face of opposing majority opinion is rather absurd.

Seriously? This is not a difficult word to understand. Do I really need to quote you examples of corruption in government?

Actually, I'll concede this point, though not fully. I would agree that widespread apathy is the larger problem. I am disinclined however to agree that it's the entirety of the problem.

This gets us into the question of whether elected representatives are mere delegates, bound to the majority opinion of their constituents - or - while mindful of majority opinion, tempering it with a deeper understanding of law and constitutional principles than understood by the average citizen (getting us back into the apathy issue), and in consideration of the potential outcomes - taking the long view, seeing the bigger picture.

The obvious danger is the creation of a nanny state, wherein elected officials view their role as parental and their constituents as children who need to be 'protected'.

 

I understand that a homophobe is anyone who disagrees with the liberal position as it applies to gays. What is a homphobe enabler?

Personally, I oppose democracy. I don't oppose it absolutely like the liberals do but we certainly need protections from the majority for unpopular minorities.

I believe in reading the Constitution that denying gays the rights, privileges, and responsibilities of heterosexual couples is wrong and unconstitutionalo.

The Defense of Marriage Act in an unwarranted and unconstitutional intrusion by the government in a religious and personal arrangement.

But, I still want to know what a homophobe enabler is. My position on the issue notwithstanding, I have been called a homophobe because I didn't vote for President Clinton and I don't support pedophiles who happen to be gay. But, what the heck is a homophobe enabler? Is that like a liberal enabler?

 

Banning gay marriage is obviously unconstitutional unless there was a constitutional amendment for it.

As for legalizing gay marriage at the federal level, well... it is arguably constitutional if done by the SCOTUS.

"nor shall any State deprive any person of life, liberty, or property without due process of law"

I think the original intent of this clause was that the states couldn't penalize random people without going through a court system -- especially to prevent the states from doing this to African Americans. Legally, the original intent is irrelevant to the constitutionality of something (which I don't find to be very honest, but it makes sense legally). If we were to take this clause to the full extent, taxes should be illegal since it is a deprivation of property, but this is obviously not what the writers of the 14th amendment had in mind and the SCOTUS has never embraced such an image. However, the SCOTUS has used the "liberty" part to make "fundamental rights" out of thin air. I certainly don't think this was ever the intent of the 14th amendment, so I don't personally subscribe to these fundamental rights (even though I love liberty -- I just feel that it's cheating). However, that is how the law currently stands. Among these rights are the right to marry and the right to have gay relationships. The two have yet to be put together (no case has been brought that far up involving it) but it is easily arguable that this must mean gay marriage is a fundamental right.

 

Then how did Ancient Athens manage it for as long as it did?

No, you do not. However, I do not see how the United States government is in fact as corrupt as so many people stereoptype it as being.

Take a look at this map:

http://upload.wikimedia.org/wikiped...ap_Index_of_perception_of_corruption_2010.svg

Each country is color-coded based on the amount of corruption each country is known to have. Blue means less corruption, and red means more corruption.

The United States is robin egg blue, whereas a majority of the world is red. Sure, there are countries like Canada and New Zealand that are darker blue than the US, but about 90% of the world is red!

The numbers don't lie; the United States is one of the least corrupt nations in the world!

I pick the latter.

After all, if you're a Hollywood actor, you probably have an agent. You also probably trust that agent to know more about deal-sealing than you do.

The decisions he makes might be inspired by his client's wishes, but he also sometimes goes against his client's wishes in an attempt to get the best results for his client... and he has the power to do so. If your agent signs you to do a voice for (*)(*)(*)(*)y Bear in Care Bears III, guess what? You're doing that voice! And you're not getting out of it! You can fire your agent once the contract expires if you feel strongly enough about it (just like how constituents can vote the elected official out of office next election, when his contract expires), but you're still doing that voice!

True, but that's all the more reason why the people need to stay on top of their government.

 

No, they've used the Ninth Amendment to do that.

 

No... the 9th amendment only applies to the federal government. They use the 14th amendment to create fundamental rights for the states.

 

Lets get rid of states rights, this is AMERICA, not a confederation of little nations. Or, maybe if the electoral college was required to cast their votes in direct proportion to the way its citizens voted (split the electoral votes).

 

Are you advocating repealing the 10th amendment and leaving all the laws to the federal government?

 

It was not created out of "thin air," though. It was created through the doctrine of incorporation.

 

The 9th amendment was never incorporated. Fundamental rights derive from the Due Process Clause of the 14th amendment. Personally, I think it's stretching the wording, but I don't find it to be the "wrong" interpretation.

 

No, it's the United STATES of America. What you desire would require not merely amending the Constitution, but scrapping it entirely for something new. Without states rights, there is no reason for states to exist at all. The Constitution is based on the existence of those states, united by the concentration of a limited set of powers in a federal government, while reserving the rest to the states (or the people).

It sounds like you want all the power to reside in a strong central government.

Well, they aren't. If you want to change this part of the system, you're going to need to pass a Constitutional amendment. Good luck with that.

 

I'm in agreement with what others have said; incorporation is a product of judicial interpretation of the 14th amendment, not the 9th.

 

Can you offer proof that Ancient Athens ever legally recognized same-sex relationships, and that it was common to do so?

Never mind that we weren't even talking about Ancient Athens, but the idea of direct democracy in the modern United States. That's called moving the goalposts. The United States in 2011 is a far cry from Athens between 509 - 322 BC. In Ancient Athens only adult males who had completed military training were able to vote, which excluded the majority of the population. Athens was not immune to rule by tyrants, either.

Lastly, the direct democracy of Ancient Athens did not ultimately survive. That doesn't exactly recommend it as a style of government for us to adopt.

Less corrupt than other nations does not mean free from corruption, nor that the level of corruption is so minor that people aren't upset by it (Or if you like, their perception that their government is corrupt).

 

This is AMERICA, the USA, not the united states. No state or small group of states can compete in the international scene without the backing of AMERICA (federal govt). No state can protect itself from foreign invasion, without America (FEDS).


No amendment necessary, do away with the constitution and hold a NEW Constitutional Convention to create a new CONSTITUTION fit for the modern era.

 

You're just plain wrong. What exactly do you think "USA" stands for? It's the United STATES of America.

The Constitution we have allows for amendment. I don't recall anything about being able to abolish it and start fresh. So I have to ask what the process for doing so would be.

If you think the states are just going to give up their power to a central government, effectively ending the reason for their existence, then I think you need to take a reality pill.

 

When Americans go to foreign nations they do not say, "I am a member of a state associated with the USA", they DO say, I am an American. Get over it, the days of independent states are long past, this is ONE NATION INDIVISIBLE.
Yes, I want America to be have one single un-confusing govt with the same laws and rules for all. I want that govt to be strong, able and of some type of democratic form, democratic republic as we have is fine. I also want to see the Constitution done away with, a NEW constitutional convention held and for a NEW and BETTER constitution that befits modern times and features, to come about.
The Constitution is old, tired and outdated, just amending it is no longer of any use, we are making amendments to change other amendments, how stupid.

 

This reflects a common misconception predominately spread by out public schools. The United States government is literally a contract entity created by the independent sovereign States. The United States Constitution is literally a contract and the States, under Article V, can desolve that contract at anytime.

Let us also remember that there is no requirement for a popular vote for president. How the electorial college members are selected by a State is excusively delegated to the State legislatures to decide. If a State wants to proportion the electorial college members based upon a popular vote there is nothing that precludes that from happening. If the Legislature wants to merely put names in a hat and draw to see who will be the electorial college members from their State they can do that as well.

 

Like I said, lets eliminate the nonsense of an outdated constitution, and laws designed over 200 years ago, by long dead people that had no idea what the world today would be like, or what the actuality of AMERICA today would be like. ELIMINATE the constitution and hold a NEW CONSTITUTIONAL CONVENTION, that can make a guide for TODAY, not for centuries past.

 

The US Constitution is not "200 years old" as it was revised in 1992 and like all documents it is current as of it's last revision. No one can point to anything that is "outdated" in the US Constitution. Is Freedom of Speech, Freedom of the Press, and Freedom of Religion outdated? Is equal protection under the law outdated? Is woman's sufferage outdated? Are the protections against government tyranny related to criminal prosecutions outdated? Are the unenumerated Rights of the People outdated? Is the establishment of government where local and state governments are the direct government of the People established by contract (state constitutions) where the state then, in turn, subcontracts (through the US Constitution) responsibilities to the federal government outdated?

We have a very well established government under our republic and we do not live in a democracy. Many seem to forget that simple fact. The federal government is NOT the government of the People. The State and Local governments are the governments of the People. We really are 50 sovereign states that are united by a contract entity (the federal government) based upon the US Constitution. This structure allows the People to decide what is best for them through local charters and state constitutions. With the diversity of the states this is impossible to accomplish at a national level.

We have consistantly seen that when an overlap of authority exists between the state and the federal government the state's performance is superior to the federal government's. From education to law enforcement to fire protection to infrastructure the state's performance is always superior to the federal government's performance.

 

hold it.

you mean the southern states had the right to secede in 1861?