I thought this was an interesting sidelight on the U.S. Supreme Court’s ruling that advocates of Proposition 8 had no standing to defend the law made by referendum:
SACRAMENTO — Activists on both sides of the bitter fight over same-sex marriage managed to agree on one thing in the wake of Wednesday’s U.S. Supreme Court decision.
The justices, they said, set a worrisome precedent by giving elected officials undue power over ballot initiatives.
The court essentially voided Proposition 8, a measure placed on the state ballot by foes of gay marriage and passed by voters in 2008. The justices said supporters of the initiative had no standing to defend the measure after state leaders — who opposed the law — had refused to do so.
Their reasoning drew a testy dissent from Justice Anthony M. Kennedy, a Sacramento native, who wrote that the decision “disrespects and disparages” California’s political process — a staple of which is the ballot initiative.
The court, Kennedy wrote, did “not take into account the fundamental principles or the practical dynamics of the initiative system in California.”…
I read that, and I think, “Good.” Nothing worrisome about it. Anything that undermines California’s chaotic government-by-plebiscite process is a good thing for representative democracy (a.k.a., “The American Way”).
Everybody’s writing about this now. I first saw the subject raised in the WSJ, this morning, and here’s the Washington Times take on it:
DENVER — The Supreme Court’s decision Wednesday on Proposition 8 unlocked the door for same-sex marriage in California but also may have stifled the voices of the state’s voters…
No, it didn’t stifle anything. They still get to elect their representatives, and that’s how things are supposed to work in a republic.
Whether it’s the definition of marriage in California, or the Confederate flag flying on the State House grounds in Columbia, or more routine, everyday laws, they are far better made through the deliberative process of representative democracy, as imperfect as that is.
There is almost no issue that is best defined as an option between “yes” and “no,” which is all you get in a referendum. True, as our politics have become more and more polarized, far too many issues get defined as “yes” or “no” even in our supposedly deliberative bodies. And that’s a tragedy.
But the cure for that is not to dumb things down further by reducing them to “yes” or “no” on a ballot voted on by people who haven’t even had the opportunity to interact with each other through ordered debate.
So anything we can do to move away from that trend, in California and the rest of the country, is a plus.
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“or the Confederate flag flying on the State House grounds in Columbia, or more routine, everyday laws, they are far better made through the deliberative process of representative democracy, as imperfect as that is.”
Representative democracy moved the flag from one place to another and called that progress.
A ballot initiative would have taken it down for good.
51% of a small group who are willing to trade a vote on one matter for another vote on a separate matter is not representing the will of the people., especially when there are even smaller factions of each legislative body who have more power than others.
Compromise is not always the best option. In the case of the flag, there are two options: Leave it or remove it. The people of the state should be able to make their choice known.
Now see, I thought this was an interesting topic. I’m glad Doug engaged it, but I thought others would…
… and to engage Doug right back.
Doug makes strong arguments, but they don’t persuade me.
The flag compromise is indeed unsatisfactory, but you know why? Because the deliberative process wasn’t allowed to run its course. After the Senate sent its proposal over to the House in 2000, Speaker David Wilkins decided to give it one day, and one day only. He didn’t want his members to have to soil their hands with the issue, so he handled it in a way that his members couldn’t get feedback from the public during their debate.
That was one of the most frustrating days of my career. We kept writing editorials based on the debate thus far that day, and then scrapping them and writing again on the basis of the latest, well on into the night, hoping against hope that Wilkins would relent and allow all ideas to be fully considered. But it ran on past the time that we had to go to press, and we had NO editorial on the topic in the next day’s paper, because we had no idea what the situation would be when readers read it in the morning.
Similarly, since it all happened within one news cycle (and in those pre-Twitter days, the term “news cycle” meant something quite specific), there was no way that citizens could see news coverage of the proceedings and react before action was taken.
This was quite intentional. Wilkins wanted no alternatives to the Senate plan seriously considered.
During that day, numerous far better ideas were put forward, ideas that would have settled the issue for good. My favorite was one from former Speaker Bob Sheheen (Vincent’s uncle, for you youngsters out there), which would have had NO flags flying, but a commemorative bronze plaque about the flag.
But Wilkins wasn’t having any of them.
This leads to another of your points. This is NOT something that should settled in a yes or no manner, and it particularly lends itself to a true deliberative process.
As I’ve said so many times in the past, this is not an issue that one side needs to cram through and IMPOSE on those who disagree, just because they have 50 percent plus one (which is how a referendum would work). We need healing, not more bitterness. We need to move forward as a state, together. Not have one side or the other “win,” and have the other side plotting its revenge. We need to stop thinking about “sides.”
That requires thinking about the kinds of things that Sheheen was proposing. Something that answers the question, “So what happens after it comes down? Do we pretend it never existed?” Ideas need to be put forward and everyone needs to get a chance to discuss them thoroughly, add their thoughts, amend and hone.
That’s the way it needs to work, if the flag is to come down in a way that actually helps our state.
But this proves my view on the fatal flaw of representative democracy. We elect people who then elect another person (Wilkins) who has far too much power. The representative democracy is both diluted and concentrated at the same time. Representatives may have wanted the flag down because that is what their constituents wanted but they go along with the Speaker because they don’t want to be punished in other ways. And the public can’t change the result after it has happened without changing enough representatives across the state to vote the Speaker out. That would take years if it were even possible.
Which is why we need term limits AND the occasional ballot initiative to minimize that consolidation of power.
I wish this were true: “Representatives may have wanted the flag down because that is what their constituents wanted…”
But that’s not the case.
I think that the overall political climate at that moment made it possible to go ahead and put the flag behind us. Which is why it’s so frustrating that Wilkins and his caucus wouldn’t consider anything better than the Senate “compromise,” which would have been cutting-edge in 1994 (when it first came up), but didn’t reflect the current political possibilities. (Note that I say “possibilities,” not realities. For GOP members to go for a real solution to the flag issue would have required a very rare combination of conviction and courage. But I think it would have been just possible, had they been willing to try.)
Remember these are Republican members. Plenty of Democrats wanted to do something different, but the GOP caucus, since the day it took over in 1995, has not given a tinker’s dam what Democrats or their constituencies want.
The Republicans were between a rock and a hard place. The business people and religious leaders wanted the flag down, and they heard from some of them, but that’s not who they heard from the most, and certainly not the loudest voices they heard.
It’s like the gun control issue. It doesn’t really matter if polls show most people want more gun control. All of the energy is on the other side. Vote against the gun control people, and they’ll look at your record overall. Tick off the 2nd Amendment folks and they will never, ever forget it, and will work against you at every turn.
The pro-flag people are like that (in fact, they are often the same people). They are very vehement.
And while a Republican MIGHT live in a district where a majority would be OK with taking the flag down, the pro-flag people were perfectly capable of dominating the next GOP primary.
Now you can say that your term-limits idea fixes that, that representatives won’t care about all that if they can’t run again. Don’t count on it.
Republicans care about their party. And a (relatively) moderate Republican, even if he couldn’t run again, would naturally prefer that someone more like himself replace him — if he believes in the kinds of things he has advocated for.
Republicans were also mindful of having won power in the State House by being pro-flag. At least, I think they believed that to be the case.
In 1994, the party did an unconscionable thing — they held a “referendum” on the flag. A “referendum” that meant nothing, since it was on the primary ballot and had no more force of law than a Gallup poll. But they used it to turn out the Angry White Males. You may recall that 1994 was THE year of the Angry White Male.
They had a record turnout, which of course voted overwhelmingly to keep the flag up. And enough of the Republican candidates who were nominated in that same primary won to put the party within striking distance of taking over the House. By “striking distance,” I mean that they were close enough that by persuading a handful of Democrats to switch parties after the election, they were able to assume power in January 1995.
And in their minds, the flag had put them into power.
And if they needed any reminder, they got it in 1998. I think it’s a gross oversimplification to say David Beasley didn’t win a second term because he had ticked off the pro-flag people, but it didn’t help him, and he did lose, and plenty of Republicans thought it was because of the flag.
Again, you will say “term limits.” But it would be the rare moderate Republican (the kind of Republican who might have voted to take the flag down) who would want his legacy to be either a) a loss of the seat due to pro-flag whites turning away from the ticket or b) to see the part dominated in the future by single-issue flag voters.
Ask yourself this question: If the flag issue was left to a ballot initiative and the result was that it was removed completely from the State House grounds, would South Carolina be better off today?
Would it help economically by removing the stigma associated with the flag? I say yes and yes.