.comment-link {margin-left:.6em;}
Visit Freedom's Zone Donate To Project Valour

Tuesday, June 13, 2006

Troubling, As Volokh Says

Over at Volokh's there's an excellent post about the Colorado Supreme Court's striking of a ballot proposition for the November election regarding the provision of services to illegal aliens. The reasoning was that the initiative had "multiple effects". This was the text of the initiative:
(1) Except as mandated by federal law, the provision of non-emergency services by the state of Colorado, or any county, city, or other political subdivision thereof, is restricted to citizens of and aliens lawfully present in the United States of America.

(2) Any person lawfully residing in the state of Colorado shall have standing to sue the state of Colorado, or any county, city, or other political subdivision of the state of Colorado, to enforce this section.

(a) Courts of record of the state of Colorado shall have jurisdiction to hear cases brought to enforce this section.

(b) The general assembly may provide reasonable and appropriate limits on the time and manner of suits brought under this section.

(3) The general assembly shall have the authority to implement this section by definitions and other appropriate legislation.
The Colorado SC wrote:
We identify at least two unrelated purposes grouped under the broad theme of restricting nonemergency government services: decreasing taxpayer expenditures on behalf of the welfare of the targeted group and denying access to administrative services.
As Volokh writes:
All constitutional provisions -- the freedom of speech, equal rights for women, a restriction on unreasonable searches and seizures, and the like -- have multiple effects, and serve multiple purposes. The single-subject rule may itself be unnecessary and unadministrable, as my colleague Dan Lowenstein has in the past argued; but to the extent that it's the law, it surely shouldn't be used to set aside proposals that are as coherent (whether or not sound) as the one proposed by Article 55, just because they have multiple effects and multiple purposes.
Volokh also quotes the dissent:
Although the majority opinion today pays homage to the requirement’s dual concerns for secreting unrelated provisions and combining provisions too unpopular to succeed on their own, it understands the term "subject" to be so elastic as to give this court unfettered discretion to either approve or disapprove virtually any popularly-initiated ballot measure at will. Because I believe the single-subject requirement was adopted to protect voters from deception and fraud rather than to limit their right to make public policy directly by constitutional amendment, I respectfully dissent.
In the commentary, it becomes clear that those who are willing to support the CO SC's action here do in fact believe that the public's right to make public policy in this way should be limited:
Sometimes it is appropriate for the people's will to be denied or for their voice to only have influence indirectly. This is why we have constitutions that mere majorities can't change in the first place. So I don't see the problem with letting states have branches of government with considerable power which aren't directly elected.
Uh-huh. But since the right of initiative is specifically provided for in the CO constitution, and the CO constitution imposes the "related subject" rule on the legislature as well, what's left of the CO constitution if you think this way? The constitution says that people have this right, and if a mere majority shouldn't have the right to change the CO constitution, does that logically imply that a couple of judges should have the right to effectively change it?

Basically the commenter is saying that the CO voting population is too stupid to be able to understand what it is doing. But the initiative is perfectly clear, and if the "legislative intent" of the voters proves to be a misunderstanding, then the voters have the ability to amend the amendment, and so does the legislature of Colorado. Nor is it at all clear to me that refusing to record a property transfer between illegal aliens is not exactly the effect that the voters of Colorado might wish to produce. The voters here act as a legislature by direct vote, and the Colorado constitution limits acts passed by the legislature using the same "single subject" rule as it does initiatives by direct referendum. Would the CO SC strike this law if it had been passed by the legislature?

Another commenter provides links to similar reasoning used to nullify Oregon's term limits provision and Georgia's (this just happened in May) amendment banning same-sex marriage. A federal district court also nullified Nebraska's same-sex marriage constitutional ban using some extraordinarily strained reasoning.

The Federal amendment about same-sex marriage has to be understood in the light of these actions. It's not a wild, premature measure - it does address the reality of what is occurring in courts at the current time. I'm not particularly in favor of it by my own instincts, but anything is better than a slow abridgement of the basics of democratic rule. If the people had the right to agree to the Colorado constitution originally, then they must have the right to use those provisions to set policy which does not deny federal rights.

It's obvious to me that the courts are producing a backlash with their own actions. I voted against the GA measure, but now I have to sit down and rethink this. The reason it was on the ballot in the first place was that the GA voters were concerned that the courts would impose their will upon the general population. In practice, the majority was just proved correct, and I was just proved wrong.

As a matter of principle, I do not believe that courts have the right to determine favored classes. A favored class is created when persons who have voluntarily undertaken a particular status or duty are given special rights. One example in GA is a property-tax exemption for the widows of volunteer firefighters. Anyone could argue in court that this is prejudicial; is this not unfair to other people who have also sacrificed for the good of the state? But courts are utterly unsuited to make such a determination. The moment they take this job upon themselves they become a super-legislature and the entire structure of the American democratic process has been fundamentally changed. The intricate set of trade-offs involved in such matters of public policy are a matter for legislatures and not courts.

Same-sex marriage is a fundamental change. As it is now, and as it always has been, men and women can get civilly married (although there are broad restrictions such as only marrying one other person at a time, age restrictions, legal competence etc). Wishing to support that custom and its beneficial effects (on average), a structure of law has emerged to offer special benefits to those who do. No individual is debarred from entering the state, although plenty of people don't find someone they don't wish to marry. What is discriminatory are the individual circumstances of the person, rather than an act of the legislature.

I would like to support the continued ability of people to argue for their inclusion in this favored class, which is why I originally voted against the GA provision. I really don't know what I will do when it comes up again. The liberalism which our system of laws has produced is really based on the implicit belief of the general population that they are able to experiment with social changes like this BECAUSE they can reverse course if necessary. I feel as if letting the action of the GA court succeed is a fundamental attack upon the very structure which has produced a broadly inclusive democracy.

I have an emotional response to the marriage question and a logical one. They don't agree.

Here's the logic: I don't know of a historic precedent for ss marriage. Not to say there isn't one, but I don't know of it. But marriage has been around for thousands of years, and it has always been between male & female. Even in cultures that celebrated the love that dare not speak its name, marriage was male/female.


What is the basis for the marriage tradition and the laws for them? If we're going to overturn a very basic social construct, we have to look at why it was set up in this manner.

You know the answer to this; of course you do. Marriage was set up to give the partner more likely to be at home giving care to young more security. Marriage was set up to give dependants a legal claim to estates. Time was, most children had married parents. Those who didn't were the exception, as those married couples without children.
Obviously, that's not the case now. But while the sociological framework within which marriage evolved doesn't exactly exist today, that really isn't a coherent argument for revamping the whole thing.

Now, some gay couples have adopted kids or kids from other relationships, and my kids are the exception because their parents have been married for 12 consecutive years to each other. But really, "it's not FAIR" doesn't fly as an argument. Life isn't fair. Get used to it.
Carson - I agree that marriage was set up for exactly the reasons you describe. Life isn't fair. The civil custom of marriage evolved to make life less unfair FOR CHILDREN- to assure better outcomes on average for them.

No decent agency would consider me as an adoptive or foster parent because of my medical problems. That assessment would not be a moral condemnation of me as a human being - it would be a realistic calculation of the likely effect on a child.

My biggest issue with same sex marriage is that our society has decided that G-L's have full parental rights. Years ago, living an active homosexual or lesbian lifestyle would have resulted in losing custody. It doesn't any more. That's the real change.

Look, Carson, I don't know what is going to work out best. I want this left up to the judgement of the people, because the people will see what is going on in practice. But if lesbians and gays are going to be raising kids, marriage probably would provide those kids the same benefits it does for straights.

I see the Catholic church's position on this as being a sign of integrity. They say that same sex couples won't be able to provide the same foundation for life that married people will, and that kids shouldn't be adopted into those families. But our society isn't saying that. Our society seems to be trying to figure out what is going to work best. I would prefer to have the full debate, which in a democracy is always a debate of experimentation and result.
Post a Comment

Links to this post:

Create a Link

<< Home

This page is powered by Blogger. Isn't yours?