Blog For Arizona

Are Civil Rights Protected by Direct Democracy?

This landed in my in-box from a ConLaw professor in New York:

I'm researching a book (titled America's Struggle over Same-Sex Marriage) and currently am in Oregon conducting interviews with participants in the Measure 36 campaign, one of the 13 ballot referenda last year placing one-man-one-woman limitations on the definition of marriage in state constitutions.

Yesterday, I met with someone affiliated with the Oregon Family Council who criticized the decision last March by the Multnomah County (Portland) Commissioners extending marriage licenses to same-sex couples. The process, and not the substance, of their actions was the target of his lament, stating that the commissioners had not acted openly in making the policy choice and had not invited public participation. He then said, "The people are smart enough, fair enough, and wise enough to make important social policy decisions."

Later in the interview, he expanded on the thought: "A well run initiative campaign by the gay community listing, say, the top 20 rights of marriage (intestate succession; visiting each other in the hospital; making medical-care decisions; etc.) might have worked. They should have taken it to the people and said, 'Prove to us that you're not biased against homosexuals. Prove your basic decency and fairness. Look at these rights and acknowledge that they're appropriate for us to have.' I think such a campaign would have done very, very well in Oregon."

I then asked him if he could provide examples from American history of statewide referenda that had the effect of expanding the rights of a disadvantaged minority. He could not.

I have further interviews scheduled with supporters of Measure 36 and ask your help: Are there instances of initiatives or referenda in the United States where voters indeed expanded the rights of minorities (racial, ethnic, disabled, etc.)? My (superficial) knowledge is that they've only had the effect of contracting rights.

It is an interesting question. I looked back into our own state's history in answer to that query and the result, while mixed, was suprisingly positive. On the whole, I'd say when faced with fairly unadorned and clear incursions into minority and personal rights, voters do tend to reject them more often than not. Their record is far from perfect, however, and it often takes many years for a final position on an issue to be clarified.

Measures arguably limiting minority, or general rights:

1918- Reinstating Death Penalty -
limits right of convicts not to be killed by state - passed

1946- "right to work" -
limiting the ability to organize labor by restricting closed shops (though some would see this, as the title implies, as a right not have to join a union to work. As union members are materially better off, this seems a dubious right at best) - passed

1948- Limits on Workmen's Compensation -
limiting the recovery of workers injured or disabled on the job - passed

1950 - Segregation of schools -
Limiting ability of minorities to attend schools of their choice - failed

1986 & 1994- tort reform -
limiting right to recover damages for injuries in court - failed

1992 - abortion -
limiting the right of women to control reproduction and bodies - failed

1998 - cockfighting -
restricts the right to engage in cockfighting sport - passed (One can credibly argue that this measure protects the rights of... well, cocks... and is not an imposition on any recognized right of persons. Fair enough, but I'm marking it red anyhow. I don't think it proper than cocks be number among minorities.)


Measures arguably expanding minority, or general rights:

1914- Alien rights-
non-citizens right of employment - passed

1916- Death Penalty Abolishment -
right of convicted criminals not to be killed by state - passed

1916 & 1918 - Workmen's Compensation -
right to be compensated for disabling injuries at work - failed

1944- welfare -
annuities for the disabled and blind to be free of abject poverty - failed

1964 - Reapportionment of school funds -
right to equal educational funding - passed (though admittedly this is better in concept than execution in the hands of our legislature...)

1982 - Motor Voter -
right to register to vote when applying for driver's license and thus, demonstrably, to have more opportunities to participate in the political proces - passed

1996 - Drug reform -
decriminalizes victimless crimes of substance possession - passed (gutted through a variety of means, however)

1998- Initiative and Referedum Protection -
protects the right of direct democracy against state government - passed

2000 - health care for working parents -
expanded the right to basic health care to working parents - passed


Campaign finance reform is either an expansion of collective rights to an uncorrupted democracy, or a limitation of the wealthy minority's right to corrupt democracy, depending on how you look at it; I suppose you could just call it toss up, but I call it a huge victory. Also ambiguous is how Prohibition might be counted, which both came and went by initiative; I call it a wash. Perhaps someday the 'War on Drugs' can also be called a wash.

This brief, and probably incomplete, survey shows a lot more green than red. When faced with choices the expand rights, equality, freedom, and dignity, voters do tend to do the right thing. There are lamentable exceptions. How are these explained? I tend to hope that they are symptoms of successful campaigns of misinformation and Orwellian language (Right to Work being an example), or of a mass hysteria regarding the unknown and unfamiliar which will ameliorate given time and education (gay rights and the threatened internment of Muslims of South Asian descent being the most troubling current examples).

I could hardly be an advocate of 'Strong Democracy' and more direct participation in governance by American voters were I to believe the American people to be reliably small-minded and cruel. If I have any criticism of Howard Dean, it is that he has often seemed too critical of direct democratic institutions. However, Dean's concern stems more from how the system can be abused than discomfort with the process itself.

I believe that the beneficence of initiatives and referenda depends on who is presenting their agenda most cogently and clearly to the voters via those direct democracy channels; too seldom is it progressives and activists. DFA should aim to change that. Americans tend to agree with our values, our priorities, and our goals, we just have to work on the presentation and the organization to get our message out reliably and undistorted. Direct democracy may be he last bastion of mass issues policitics, and we had best becomes its master, lest conservatives use it to master us.

posted by Michael Bryan @ 1/12/2005 05:02:00 PM