Subscribe to Breaking NewsRuby-Sachs: Ken Starr tells us how it is
It wouldn’t be 2009 without a little noise from our friends on the social conservative side of the spectrum.
Ken Starr released a response yesterday to the California Attorney General’s submission to the Supreme Court on Proposition 8.
For those who are not legal junkies, the Attorney General submitted a brief back in December arguing many of the same points as legal counsel for the invalidation of Prop 8. However, he also argued that Prop 8 was invalid because it constrained the liberty rights (guaranteed in s. I of the California Constitution) without offering a compelling interest for doing so.
Well, it is a new way of looking at things – at least for this legal battle. And Starr, bless his soul, was quick to point that out. In a flowery-worded brief, the case for democracy was made. There was much talk about the power of the people, the rights of the majority to govern based on duly elected officials, the opposition to tyranny through democratic movements.
I mean, it sounded more like a communist theory of the people’s uprising than an attack on the rights of a minority group of citizens.
But where Ken Starr misses the point is not in his rhapsodizing about the virtues of democracy. I agree wholeheartedly with his notions of elections and accountability.
He just doesn’t understand what a Constitution is.
As any nation with a Constitution, the United States, each of them, create documents outlining the principles that should govern the enactment of laws by the elected government. They are instruments of limitation – establishing certain guidelines for the “will of the people.” The Attorney General merely points out that even subsequent amendments to the Constitution should not undo those guidelines already established. It’s a reliance on “natural law” or the idea that some kinds of rights are so fundamental to the fabric of society that they can’t be legislated away.
Constitutions are a check on the tyranny of the majority. Just like in the civil rights movement, courts may step in and find that the people are using their power in a way that contradicts the notions of liberty and equality and justice that underlie the basic law of the land.
But Starr feels that majority rule is the only game in town. And as such, the courts should trust the will of the people. He even asks, “What, then, of the Attorney General’s appeal to dark, conjectural fears that the people of California might someday use their initiative amendment power in tyrannical ways?”
Well on this one, both Starr and the AG have missed the boat. I’m pretty sure the people have already used this power they may or may not have had to seriously attack the dignity and freedom of a minority group in their midst. If this is not tyranny, I am hard pressed to find what is.
Ryan, you’re wrong. You speak of constitutions in general; right now, Iran and China both have text in their constitutions explicitly guaranteeing the rights of minorities to exist unmolested. Extending suffrage to American women was not a vote of the majority of the population. Most US states have elements in their constitutions dating from times when women couldn’t vote, or blacks couldn’t vote, or Catholics couldn’t vote, or people who didn’t own land couldn’t vote. Do like Ken Starr and hew close to your statement, and you would have every state constitution tied up in litigation for decades to come.
Even hardcore conservatives are forced to acknowledge that law is a living, evolving thing. If it weren’t, people like Antonin Scalia would be stuck baking pizza and re-soling shoes. People like Clarence Thomas…
Starr and Ruby-Sachs are both wrong.
It’s perfectly reasonable, and constitutional, to undo something already in a constitution. That’s why alcohol is legal in the US. It would be a pretty bad system that engraved everything in stone.
And depending on what is in the constitution, it is not necessary any check on the tyranny of the majority, or any other tyranny. If the constitution says popular vote wins, then it wins. Simple.
However, what both have failed to understand is that the California constitution is subject to the US constitution and may not be amended to restrict a group of people from government services, which is why Colorado Amendment 2 was overturned at the US Supreme Court.
RE: ken starr tells us how it is—-RIGHT ON! Ruby-Sachs. Thank you againand again.
Dr. Peter
Ryan,
When that consensus involves direct oppression against the lives of human beings, then those human beings should do all they can to rectify such an untenable situation. Do you wear an ill-fitting shoe that damages your feet? No, you do something about it.
In the case of a constitution that outlaws and tyrannizes gay people, gay people do not take that lying down. They do something about that document. They rally to their side forces of good and of fairness to gain the eventual support of the public to undo the wrong that was hammered into the constitution.
Constitutions normal expand the rights of people and not trample on or deny those basic rights. Unless you live in Africa where a number of constitutions have been amended to criminalize gay marriage and or gay people. This country has been sinking down to the level of antigay Africa, and we need to stop the decline of our country and make it reverse direction and become a truly 21st century Western Democracy.
When we have Cuba and Nepal now on the way to granting gay people rights, even marriage rights in the case of Nepal, after US refused to back gay rights at the UN, we rapidly approaching the bottom of the list of Western Democracies.
With Norway (with its brand new gay marriage law, SURPRISED THE EDITORIAL STAFF AT 365GAY.COM HADN’T YET CAUGHT ON THE FACT NORWAY HAD ITS DAY OF GAY MARRIAGE ON NEW YEAR’S DAY OF 2009, AND BECAME GAY MARRIAGE #6. WHAT A GORGEOUS COUNTRY TO HAVE A GAY WEDDING IN!!
Now, let’s see, top of the list of Western Democracies, Norway, and the other Scandinavian kingdoms, Sweden may be getting gay marriage this summer, Denmark, Canada, New Zealand, etc.
Israel lets gay people serve in its military.
USA is at the very bottom of the major Western Democracies in terms of gay rights, no secret to anyone. In Canada, gay military personel can get married on a military base as happied in Nova Scotia a couple of years ago between 2 gay male officers.
Parts of the world are moving forward while the USA is still held back, thanks to guys like Ken Starr.
PLEASE….Publish less Ruby-Sachs tripe!
If Starr were correct,this case wouldn’t be sitting in front of the California Supreme Court to make the final decision, would it? Minority rights must be protected from the tyranny of the majority. If not, let’s start putting other groups on the ballot.
Constitutions are not a check on the tyranny of the majority, but rather a consensus by the majority on how to be governed and to resolve conflict.
Also, I am fairly certain that Ken Starr knows what a constitution is, even if I disagree with his interpretation.