The Tyranny of the Majority is not just a cliche. Putting things up for a vote is always a dicey proposition. Imagine if we had a referendum on the Civil Rights Act in 1964. It's even money that African Americans would still be using "blacks only" water fountains. Suppose the population was asked to cast a ballot approving the Military Draft in 1863; or the first permanent income tax in 1913. We would have had no army and no money. (True, the income tax was voted on by the states in ratifying the Sixteenth Amendment but those people also ratified the Eighteenth Amendment [Prohibition] six years later, so clearly they were delirious.) If you're old enough to remember Prop 13 in California in 1978, you recall that Golden State citizens were asked to vote to halt the increase in property taxes. Naturally, it passed. You don't need a history book to guess how that turned out. Much of California's current troubles have their origins with Prop 13. Everybody thinks that they pay too much in taxes and if left to the voters, few assessments would become law.
Nevertheless the conservatives of today, with God on their side and determined to halt progress and resist any change to anything, are delighted to allow the acceptance of gay marriage to be left to a series of ballot initiatives in the fifty states. No such referendum is afforded marijuana laws. They argue that the people are the best judges of common morality and convention. Interestingly enough, no such public referendum is afforded current laws on marijuana. Judges who invalidates one of these populist laws on Constitutional grounds are immediately condemned an activist, thwarting the will of the people.
The problem with government by the people is, the will of the people is almost always wrong and has the nasty habit of exhibiting all the directional stability of a wind sock. Twenty years ago as much as 80% of America was in favor of the death penalty. Today that number is creeping toward 60%. It seems that when high schoolers can overturn capital convictions as part of a class project, even the bloodthirstiest Americans suspect a problem.
Interestingly enough, the state that has been most victimized by ballot initiatives is looking at the possibility of rewriting its Constitution and using the ballot initiative process to do it. A group called the Bay Area Council is heading an effort to pass two new propositions. One would allow the voters to call a Constitutional Convention by initiative. (Currently, only the legislature can call a convention and then only by a two-thirds margin.) The second proposition would actually convene the convention. The scope of the convention would include a possible re-engineering of the entire Sacramento government. While federal law guarantees a representative state government for all (no dictators or kings need apply) the composition of the government is left entirely up to the states.
The California initiative imagines a constitutional convention comprised of citizens chosen at random from the adult population. The reasoning goes that if no one appoints the delegates, they won't be beholden to any special interest. The plan also proposes to stay clear of social issues: no gay marriage, no affirmative action, no abortion.
However this turns out, (the plan has impressive bipartisan support) the process will be fascinating. If all goes as planned (hey, it could happen) the new constitution would be ready for a vote by the 2012 election.
Imagine if the convention decided on a parliamentary system like the Brits or a tricameral legislature instead of the current two-house system. At least the delegates will have the benefit of two hundred years of trial and error upon which to draw and we'll get to watch the whole thing on C-SPAN's first reality show. Who knows, they might even draft a clause that prohibits populist Austrian body builders from seeking high office...unless they're married to liberal royalty.
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