Majority rule has its limits
April 28, 2009
Now that Sen. Arlen Specter has prudently jumped off the sinking GOP ship, and with the apparent victory of Al Franken in Minnesota, the Democrats will have a filibuster-proof majority for at least some of their agenda. The filibuster, of course, appears nowhere in our Constitution, yet it has been both an important safeguard and major impediment to liberty and effective government. What is the proper balance of majority rule and should there ever be a requirement of a “super majority?”
California presents an interesting paradox when it comes to majority rule. As we have recently witnessed, apparently a bare majority of citizens can amend the state constitution, even if it impinges the rights of others. Yet the same state requires that any budget must be passed by a supermajority of the state legislature.
In my opinion, this is wrong on both counts.
The requirement for a supermajority to pass a budget has paralyzed the state almost every year since the Jarvis-led anti-tax groups imposed that requirement in the state constitution. While some are pleased that the legislature is unable to effectively govern because a relatively small number of legislators can stymie any tax increase or indeed any budget they do not like, it has tremendous costs for all citizens.
The California Republican party has chosen to refuse to vote for any tax increases. That is their prerogative, but the result has been that our state budget is chronically out of balance (another constitutional requirement) and the way around this has led to weird budget sleight-of-hand maneuvers and excessive borrowing through bonds. Both end up costing much more to accomplish the same results for the state.
In the end, the supermajority requirement has led to less government efficiency, higher effective costs for government’s operations and less accountability to the citizens of the state.
On the federal level, all bills other than a few (most notably budget “reconciliation” bills) are at the mercy of a single senator’s objection through the filibuster. At times, this rule has stopped a runaway Senate from enacting some very bad legislation. At times, it has stood in the way of some very good legislation.
Many people assume we are a constitutional democracy and that if a majority vote in favor of something it should prevail. People even object to the oft-rumored vote skewing of American Idol as an example of protecting the right of a “real” majority of voters to prevail.
We are not a constitutional democracy and there are many times a majority cannot and should not prevail. Among them of course, is the complex way in which a federal Constitutional Amendment can be passed. Several supermajority steps are involved on the correct premise that the Constitution should not be easily amended so that essential rights and liberties should not be removed by an inflamed or runaway public.
Which brings us back to California. The state Supreme Court has yet to issue its opinion of Proposition 8 which amended the state constitution to limit marriage to a man and a woman, thus overturning another opinion of the same court. One of the challenges against 8 is that it would deny a protected minority equal protection, another constitutional requirement, and therefore is unconstitutional because not approved in a way that would require a supermajority.
We shall see how the court rules, but to me it should be at least as difficult to amend away constitutional rights as it is to pass a state budget. It makes no sense to let so few (Proposition 8 passed with nearly 52% majority, but only 62% of eligible voters voted, so it rights were taken away by 34% of all voters) take away any rights, much less amend any other part of the constitution.
Majorities should prevail on many issues, and that is how our system is designed. In my opinion, that even applies to most issues in the federal Senate and the filibuster rule should be sharply limited. But there are issues that are always important and that involve basic rights or long term effects on the public and for those some form of supermajority is both healthy and necessary.
We all know that the majority is wrong as often as it is right. In today’s over-stimulated information society, it is too easy to create false, temporary majorities through manipulation of media and distortions of reality. We need mechanisms to slow down the majority, but not entirely impede it.