The Civics Lesson In The Aftermath Of Proposition 8

By: Byron Williams

Recently, a friend lamented if those opposed to Proposition 8 had worked as hard before it passed as they have after voters approved the initiative, banning same-gender couples from marriage, the outcome may have been different.

Maybe, but we're certainly witnessing a public civics less.o.ns.

Since Prop. 8 passed, there have been widespread protest throughout the state and nationally. Attorney General Jerry Brown has already urged the California Supreme Court, whose ruling for same-gender marriage put Prop. 8 on the ballot, to once again decide whether the voter-approved ballot measure is constitutional.

Brown's request will most likely fast track Prop. 8 so that the justices will render a decis.ion on its constitutionality sooner rather than later.

For those wondering why the protests seem to persist after the passing of Prop. 8, from the political theorist perspective we may be witnessing a backlash to the tyranny of the majority.

The concept of tyranny of the majority has its roots in Plato's Republic; it is used in reference to democracies and majority rule. The actual term originated with Alexis de Tocqueville; it is a criticism of any scenario in which decis.ions made by a majority would place its interests above a minority's interest to the point that majority will becomes "tyrannical."

I am quite certain that proponents of Prop. 8 would not consider their view as tyrannical, but such issues should never be confined to the micro contours of a single matter but rather the macro outcome. Does it suffice for society if the majority wants to be selective with its application of equal protection under the law?

As John Stuart Mills opined, "Like other tyrannies, the tyranny of the majority was at first, and is still vulgarly, held in dread, chiefly as operating through the acts of the public authorities."

By simply being in the majority opinion can lead one to believe they are impervious to the type arrogance that robs one of their self-reflective impulses that can to lead to an abuse of power. And as de Tocqueville argued in Democracy in America, majority rule carries with it an implied moral authority that " there is more intelligence and wisdom in a number of men united than a single individual."

This is the popular, but erroneous, notion that gives rise to the "judicial activism" argument, especially when a ruling by the judiciary branch of government goes against what may be viewed as the popular opinion.

I have received countless e-mail justifying their support of Prop. 8 based on the majority rule of Prop. 22 in 2000 and that the state Supreme Court caused this problem by "legislating from the bench."

This is an elementary understanding of our democracy that has most likely embraced the juvenile orthodoxy of conservative talk radio. But the Framers of the Republic were not unaware of the potential problems associated with the tyranny of he majority, or as some would benignly call the "will of the people."

Left to its own unbridled interests; the potential for the majority to abuse its power is as great as any other group.

James Madison wrote in Federalist Number 10:

"The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression."

Madison goes on to write, "Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens."

How does the sphere extend in relation to Prop. 8? This is the tension that the state Supreme Court must now negotiate.

It is certainly impractical to assume, as Madison would argue, there can be a society comprised of homogeneous opinions and interest. But the court will now be charged to find the moral line that distinguishes between majority rule and the tyranny of the majority.