"I know no safe depository of the ultimate powers of the society but the people themselves, and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power." - Thomas Jefferson


We as Americans all remember being taught when we were young about our nation's founders, the patriots who stood up to the tyranny of the crown of England, the drafters of the declaration of independence, the constitution, and the bill of rights, the documents that became the framework for a system of governance that they believed would maintain a balance of power within a truly representative government, that would preserve the basic rights and liberties of the people, let their voice be heard, and provide to them a government, as Lincoln later put it, "of the people, by the people, and for the people."

What we may not be so quick to recall, however, is that there was much debate between the founding fathers as to what model our system of government should follow. Those such as Thomas Jefferson, Thomas Paine, and Patrick Henry on one side favored a pure and direct democracy with the legislative power vested in the very hands of the people, while others such as James Madison, John Adams and George Washington held that a representative democracy would better serve the people than a true democracy because they believed it would protect the individual liberties of the minority from the will of the majority. Alexander Hamilton even went so far as to support the creation of a monarchy. In the end, those favoring representative democracy won the day and that is the system they put in place in the hopes of creating a "more perfect union."

Now we must ask ourselves, what would the founding fathers think if they were resurrected today to see what has become of their vision? One can only assume that they would begin to search for modern day patriots to meet them once again at the liberty tree in order to plan a new struggle for freedom and self governance. Although we continue to praise and honor those who founded our nation and sought to create a truly just form of government for it, do we really stop to reflect on whether we as a nation have in fact succeeded in preserving what they fought so hard to create?

Today, in contrast to our revolutionary ancestors, we as citizens of the United States generally observe politics from afar and the vast majority of us may participate in the political process only to the extent that we go to the polls once a year to vote. Over the decades and centuries we have allowed the erosion of the ideals of the founding fathers and the corruption of the principles which they enshrined in those so carefully conceived documents. We have been left with essentially no real power to influence our "democratically" elected officials. We may write an occasional letter to our senator or representative that generates a form letter in response and a statistical data entry that may or may not be weighed against the influence of some powerful corporate lobby. We may be permitted to participate in a march or demonstration of thousands or even millions, something our patriots of old would have marvelled at, only to be dismissed as a 'focus group' with no bearing on policy decisions.

How then is the government held accountable to the voice of the people? Are the people meant to speak only at the polls when given a choice between a select few candidates that may be equally corrupt? No, as Jefferson and his allies rightly believed, the people should be heard much more than that.

In spite of their good intentions, the system of representative democracy that the founding fathers opted for has been systematically undermined and has ultimately failed in preserving the well being of the people of this nation. Most of us accept this reality as being beyond our control and continue to observe, comment, and complain without aspiring to achieving any real change. Our local leaders and activists in our communities, and even those local elected officials who may have the best of intentions are for the most part powerless to make real positive change happen in our neighborhoods, towns and villages when there is so much corruption from above.

We have become so accustomed to this failed system of representative democracy that it may not occur to us that there are other alternative forms of democracy. In various places around the world participatory or direct democracy has been instituted both in concert with representative democracy, and as a replacement for it. It is a form of democracy that is designed to take directly into account your views, and the views of your neighbors, and to politically empower you to make real positive change possible in your communities. Initiative, referendum & recall, community councils, and grassroots organizing are but a few ways in which direct/participatory democracy is achieving great success around the world.

This site will attempt to explore in depth the concept of participatory democracy and how this grass-roots based form of governance could help bring us back in line with the principles this country was founded upon if it were allowed to take root here. In the hope that one day we can become a nation working together as a united people practicing true democracy as true equals, we open this forum…



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Friday, May 30, 2008


An interesting piece on the controversy over an initiative proposed for the state ballot by opponents of same sex marriage that could potentially overturn a Clifornia Supreme Court ruling that has granted same sex couples equal rights under marriage. - Editor

The California Supreme Court's Gay Marriage Opinion:
The People of California Have the Power to Undo It By a Ballot Initiative Amending the State Constitution, But How Far Should That Power Extend?

Thursday, May. 22, 2008


In a highly-publicized ruling last week, the California Supreme Court required the State to offer marriage to gay and lesbian couples on the same terms as those enjoyed by opposite-sex couples. That decision will undoubtedly prompt volumes of analysis and commentary. In this column, I will offer a few preliminary perspectives and thoughts on the aftermath the ruling might generate.

The People of California Can Negate the Court's Decision, But Should That Power Be Considered Routine or Somewhat Disturbing?

First, as has been noted by my fellow FindLaw columnist Michael Dorf and others, the California high court ruling might be trumped by the voters of California as early as this November. Opponents of gay marriage have gathered and submitted signatures to qualify an initiative measure (the "California Marriage Protection Act" or "CMPA") for the State ballot this fall that would, if enacted, amend the California constitution to provide that "[o]nly marriage between a man and a woman is valid or recognized" in the State. Because last week's decision by the California Justices was rendered on the basis of the California constitution alone (and not the federal Constitution), everyone seems to agree that the people of California can, by a simple majority vote in November, act to foreclose same-sex marriage in the Golden State.

From one perspective, this possibility of overturning a judicial result by direct democracy seems obvious and unremarkable: Since the people of California have ultimate power to decide what they want their own state constitution to say and do, they can – if they choose -- remove any state constitutional protection for same-sex couples that may currently exist.

But viewed from a different angle, the people's power to undo last week's ruling via statewide simple-majority popular vote seems more troubling. After all, one of the rationales relied on by the California Supreme court in invalidating California's statutory ban on same-sex marriage was the notion that government discrimination on the basis of sexual orientation should be viewed skeptically, because gays and lesbians are groups that have been historically victimized by invidious and prejudicial treatment that bears no relationship to their ability to perform in or contribute to society. This history of irrational prejudice, the court said, was "the most important factor in deciding whether" laws that treat gays and lesbians differently from straight persons should be constitutionally suspect.

But if the very reason why discrimination against gays and lesbians is constitutionally wrong is that the political majority has tended in the past to treat them unfairly, isn't it odd that the same political majority can, with a simple initiative vote in November, impose its will on them yet again?

The short answer to this question is this: Maybe it is odd, but constitutional law is odd in that way. By definition, whatever the California people want the California constitution to be, it will be. In this regard, I might disagree a bit with Professor Dorf's assertion that "California constitutional law [does not] embrace the view that minority rights turn on the majority's willingness to recognize those rights." In a very real sense, California constitutional law – and all constitutional law, for that matter – does embrace that exact view. As my brother and (sometimes)FindLaw colleague, Akhil Amar, has put the point: "In the end, individual [and minority group] rights in our system are, and should be, the products of ultimately majoritarian processes."

The CMPA campaign should be a reminder, too, that what is legally and constitutionally permissible should not be confused with what is morally right. While constitutions may be the "supreme" law that people put down on paper and enact and enforce, they may not be – and often are not – the supreme embodiment of that which is just. Ultimately, even constitutions operate in a larger context of right and wrong.

The California Supreme Court Based Its Ruling Only on the California Constitution, Yet the U.S. Constitution Will Come Back Into Play if CMPA Passes in November

State constitutions operate not just in the larger context of morality and justice, but also in the larger context of the U.S. Constitution. And that fact raises some interesting questions about the interplay between California and federal law. In particular, what effect does the federal Constitution have on last week's ruling, or November's initiative outcome?

As to last week's ruling, the federal Constitution is beside the point. As noted earlier, the California justices ruled under state law only, and there is certainly nothing in the federal Constitution that prevents state law from recognizing same-sex marriage. Although the U.S. Supreme Court has not indicated it is yet ready to recognize a federal constitutional right to gay marriage (a point to which I shall return later in the column), states are free to do what they want in this area by way of affirmatively equalizing marriage rights.

Possible enactment of the CMPA in November raises more complicated federal questions, however. Suppose the initiative passes. Going forward, California would no longer issue marriage licenses to same-sex couples. But what about those same-sex marriages that are sanctioned by California this summer and fall, before the initiative is approved? Will those same-sex marriages continue to be respected?

That depends on a few things. First, it isn't clear (to me at least) that the CMPA by its own terms will, if enacted, affect already-existing California same-sex marriages. Initiatives in California are presumed to apply only prospectively unless they themselves provide for retroactive application. There is no explicit wording in the CMPA concerning its applicability to already-existing marriages.

Yet some gay marriage opponents may assert that the CMPA's ban on recognizing or treating as valid same-sex marriages (remember, the CMPA says "only [opposite sex] marriage. . . is valid or recognized") will prevent the State from continuing to recognize or treat as valid any same-sex marriages for any state law purpose going forward.

It's not clear today what "continuing" in-state validity or recognition would really mean (since California's domestic partnership laws conferred tangible benefits on registered same-sex couples even before last week's ruling on whether the label "marriage" should be extended.) But to the extent that it matters whether couples who marry this summer continue to be able to use the term "marriage," federal constitutional law may prohibit the retroactive application of the CMPA.

Under the due process clause of the U.S. Constitution's Fourteenth Amendment, states are limited in their ability to upset settled expectations about important property and liberty interests. And for the California constitution to tell same-sex couples that they are free to marry (as it currently does), and then tell them (after the constitution is altered in November) that their decision to marry is no longer honored by the State may unfairly disturb their reliance interest, and upset their reasonable expectations.

At the very least, the possibility of a violation of the Fourteenth Amendment should leave California courts (which will interpret the CMPA) inclined to read it narrowly and to deny it any retroactive effect. Such a narrow reading will avoid the need to resolve the federal constitutional problems with retroactive application, and courts often say that avoiding questions like those by reading state law narrowly is a good thing – since courts should not decide important constitutional questions unless reaching such questions is absolutely necessary.

What Are the Chances that a Federal Constitutional Right to Same-Sex Marriage Will Be Found?

Finally, what, if anything, does last week's ruling tell us about a federal constitutional right to same-sex marriage? Many commentators will say, "Nothing at all," because the meaning of the federal Constitution is distinct from the meaning of state constitutions. It is true that federal law and state law have separate lives. But it is also true that they often influence each other.

It is very common for state courts to interpret their state constitutions to mean exactly what the federal Constitution means. Granted, it is less common for federal courts to look to state law to determine what the federal Constitution means (as the Supreme Court made clear in its ruling earlier this term in Virginia v. Moore, by rejecting the incorporation of state law into the meaning of "unreasonable" searches and seizures under the Fourth Amendment). However, and importantly, there are a few areas where the meaning of state law does help determine the meaning of the federal Constitution.

One such area is so-called "cruel and unusual" punishment under the Eighth Amendment. There, what counts as "cruel and unusual" under the federal Constitution depends on what states are doing and not doing.

Another area, at least for many Supreme Court Justices, is substantive due process. What counts as a federally-protected "fundamental right" depends on what states have done, and what they are continuing to do. While Massachusetts and California are still the outliers in the national gay-marriage picture, those two States do comprise almost one seventh of the American people. And it won't take many more (populous) states following their lead to create a trend that might count in the eyes of Justice Anthony Kennedy and the other key Justices whose views on the meaning of fundamental federal rights dictate outcomes in the Supreme Court.

Vikram David Amar is a professor of law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

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