Thursday, August 05, 2010


Democracy vs Nomocracy


Much has been written after the news that Judge Vaughn R. Walker has ruled that Proposition 8 and the subsequent "California Marriage Protection Act" is unconstitutional. To remind you, it was on the November 2008 ballot and the initiative was passed by the people of California by 52% to 48%.
The Proposition stated:
Section I. Title

This measure shall be known and may be cited as the "California Marriage Protection Act."

Section 2. Article I. Section 7.5 is added to the California Constitution. to read:

Sec. 7.5. Only marriage between a man and a woman is valid or recognized in California

while the article from the CBC calls it a ban to same sex marriages, that's not quite the wording, it is more a protection of the traditional definition of marriage.

Going back to the ruling, the Judge declared that such a law is unconstitutional in that it violates the 14th amendment. The section, which is the first, is:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

By these words, the Judge declared the Law discriminated against people by making two different classifications of citizens.

What we have here and I can imagine what sides are saying, is the classic confrontation between Democracy and Nomocracy. The words are defined this way, 'the rule of the people' vs 'the rule of the Law'. This is the dynamic tension that exists within a democratic society.

I should say, that this blog is inspired by a quick dialogue I had on Facebook between Jo-Anne's niece Jennifer and myself. We need to consider a few things about democracy; it has been called the worst form of government, with the exception of the other ones. Then there is this thing about 'freedom of expression'. The vote on Proposition 8 was based upon the fact that California believes the citizens have a right to express their opinion on legislation which can be initiated by referendum. Now here's the problem, when you allow people to express themselves, they do just that. Democracy is messy and people when given the right to say or believe something they will do just that, and often it might not be the way the elite want them to think or say. I suspect that's why the vote was such a shock, this is progressive California, home of Hollywood with all those liberal types. After all, the elite and celebrities were all in favour. However, these weren't the only people who were allowed to vote. Everyone had the right to vote, including people who held to traditional viewpoints of marriage and family. Peoples who were conservative in their thinking in matters such as family and religion supported the view that marriage and family is based upon the traditional definition. I know that many twitters like to use the word 'bigot' and 'haters' or h8rs as the only ones who supported Proposition 8. Of course that's the traditional way to vilify and demonize the opposition. It's easier to call them 'haters' rather then calling them 'people who hold to a tradition view of marriage and family'. Plus it would use up almost all their 140 characters on twitter.

The 'power of the people' is the referendum. Then along comes Judge Walker and states the thinking is wrong, or rather, the outcome is wrong because it discriminates and you can't discriminate.

Of course, it could be argued Vox populi, vox dei, the voice of the people is the voice of God. I thought that until I discovered the entire text:
Nec audiendi qui solent dicere, Vox populi, vox Dei, quum tumultuositas vulgi semper insaniae proxima sit. which is translated as:
And those people should not be listening to those who keep saying the voice of the people is the voice of God, since the riotousness of the crowd is always very close to madness.. That's the rub, while we should support that people have the right to express themselves and it is good if the will of the majority holds sway; there is always the danger of the tyranny of the majority. The problem is that the majority usually like things the way they are, if there is no compelling reason to change, they will stick with the status quo. This is where the rule of law must come in. The one thing the majority can never do is overcome the Constitution. It is the document which expresses the fact that people have rights and these rights are possessed by all members of the society. It protects people from each other.

This is why there is a way to add rights and not take them away. All nations with a written constitution have an amending formula to the Constitution. Usually they are next to impossible, by the way, but there is nothing in the Constitution to take away rights. This is the brilliance of the Constitution because the writers knew there was always a danger that a demagogue could come along and convince to take rights away from a segment of society.

This is not to say the Law is perfect, I mentioned the danger of democracy, that if you let people express themselves, they will and it may have issues with the rights of the minority. Let me suggest the words of Charles Dickens:
If the law supposes that, then the law is a ass, a idiot! If that's the eye of the law, then the law is a bachelor. And the worst I wish the law is that his eye may be opened by experience.
.

The Law can have some clunkers, remember Dred Scott. The law upheld the notion, in the States, that a slave:
the Court ruled that slaves had no claim to freedom. They were property and not citizens, and could not bring suit in federal court. Because slaves were private property, the federal government could not revoke a white slave owner's right to own a slave based on where he lived, thus nullifying the essence of the Missouri Compromise
. So the Court decided that a slave was not a Person. The quote is from Wikipedia, by the way, look it up. It took a lot of people and a War to change the Law, but it was changed.

So you have the messiness of democracy and the clunks of the Law. But it is when both work together the genius of democracy is found. There are times when the Law stands up and declares the Truth and others when the People rise up against an unfair Law and demand a change. Both have happened and both will happen. The Law can drag the people kicking and screaming into the 21st Century, and the People can drag the Law into Freedom and Democracy.

Both must exist.

If you ask me which is worst, Democracy or the Law. I would say 'yes' and 'no' to both. True law cannot exist or gain legitimacy unless it comes from the people, the Demos, as you will and Democracy cannot exist or have expression unless protected by the Law.

They work together and must continue to do so, keeping watch over each other should the one stray and helping each other, keeping the balance so that true democracy can exist.

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