How Progressives helped the Religious Right mug gay rights.
There are issues where the Progressives, from the classical liberal view, are on target, or close enough for government work. Social freedom tends to be that area. They deserve thanks for leading the battle to expand the rights of gay people until they are coequal to those granted heterosexual. Liberalism, that is true liberalism, as Hayek noted is always ready to expand liberty into new areas which terrify conservatives. So true liberals and Progressives have some common ground in those areas.
And many Progressives are disturbed by the well-funded campaign of religious zealots to strip gay couples of marriage rights in California. As am I. But what our Progressive friends don’t realize, recognize or, perhaps even know, is that Progressives were the accomplices of the Religious Right in this campaign to strip people of their rights. They made this antigay campaign possible. To understand how let us look at some history.
America’s founders were not advocates of democratic rule. They worried that people’s passions were too easily riled up by demagogues and that mobs could easily be persuaded to strip individuals or minorities of their rights. The Founders tried to avoid the tyranny of the majority. They created a government that was inherently anti-majoritarian in many ways -- certainly it was openly antidemocratic. The president was not elected directly, he was elected by electors not by the people. And while most people still don’t understand the Electoral College that is pretty much how it is done today.
Secondly, the Founders had the Senate representing the states not the people. They were appointed by each state legislature not directly elected.
The third branch of government was the Supreme Court where justices were appointed by the president (himself not directly elected) and approved by the Senate (which was not directly elected). To give it an even stronger antidemocratic nature they made sure the Justices were appointed for life and couldn’t be removed by popular vote.
The reason they did this was simple. They were not establishing a democracy but a free society where the rights of all people would be respected -- at least that was the goal whatever failings they had in achieving it. They didn’t want the rights of minorities subjected to popular vote. Thomas Jefferson said, “It is ridiculous to suppose, that a man had less rights in himself than one of his neighbors, or, indeed, than all of them put together.” Even a unanimous vote of everyone but the person being targeted is not a legitimate reason for denying rights. The Yes on 8 people don’t understand this and keep harping about previous popular votes to deny rights to gay couples. Rights, properly understood, should not be subject to popular vote,
Jefferson said that when the rights of individuals or minorities are subject to majority approval, “This would be slavery, not the liberty which the bill of rights had made inviolable, and for the preservation of which our government has been charged.” The writer Frank Chodorov warned, “the idea that a number of people, acting together, have a right, which supersedes the rights of the individual is pure fantasy, and one which as experience shows, has been invented for no good purpose.”
We shouldn’t vote on which churches should have freedom of religion. We shouldn’t vote on which minorities have the right to attend schools and which don’t. The rights of minorities do not rely upon majority approval. That was what the Founders were attempting to accomplish. Subjecting the rights of individuals to majority approval leads to social warfare, to conflict between groups and individuals. It increase social instability and breeds violence. Oscar Wilde once described pure democracy as “the bludgeoning of the people, by the people, for the people.” He was right. When rights are subject to majority approval people get bludgeoned. And in California what is happening is nothing short of electoral gay bashing.
So how did we reach the situation where minorities must come begging to the majority for equal protection before the law? Was it some crusade by Religious Right fanatics? Not at all, the religious fanatics exist and are using the law but they didn’t set it up.
The advocates of the ballot initiative process were the Progressives -- or socialists. Hiram Johnson was California’s governor and in 1911 he and local Progressive put through a series of reforms to give the majority more say in politics. Johnson went on to be a founder of the national Progressive Party and was the party’s vice presidential candidate. He was also a supporter of the racist Alien Land Law of 1913 which stripped Asian immigrants of the right to property--a law overturned by the California Supreme Court. Presumably something the Yes on 8 people would resent -- damn activist judges going around protecting rights.
One of the things that stymied the Progressives was that the Constitution limited government powers and the socialists wanted government to have more power. They believed that ballot initiatives would allow them to bypass the legislatures and push through measures that promoted socialism. They believed that the majority would use the power to confiscate wealth from the rich. And they would when they can, and have done so -- see rent control and the measures to mandate lower insurance costs as an example.
But it wasn’t the poor versus the rich. It was a majority of people against a minority of people. The wealthy were, and are, a minority. The socialists were using a method they believed would attack the rights of a minority, the well-off. So majorities tend to favor passing costs on to people other than themselves and focusing the benefits on themselves. That is what majoritarian initiatives tend to do.
The initiative was created so that majorities could strip minorities of rights. The socialists thought it was okay to do this because the minority was wealthy. But, once that process exists, all minorities face problems. If there is sufficient hatred for one minority, say whipped up by religious crazies, then that minority may be stripped of rights barring other Constitutional protections enforced by judges.
In California, the Progressives allowed the Constitution to be changed by majority vote. So voters in California can, in regards to matters that are under state control, such as marriage, impose their own biases on that document and strip a minority of their rights.
One of the things I have harped on, repeatedly, to the exhaustion of some readers I suspect, is the matter of expanding state power. I have argued that when the Left expands the powers of the state to do what they consider to be good things, they create a situation where their opponents can then win office and use those expanded powers for what the Left would consider to be bad things. That is precisely how gay people are being stripped of their right to marry in California.
It was understandable that this process was pushed through but short-sighted. The California government was corrupt and in the back pockets of certain business interests. But this is only a problem when we have government with massive powers. If government has few, clearly delineated powers and no ability to redistribute rights and wealth from majorities to minorities (which is what tends to happen in the legislative process) then few corrupt business interests would be interested in owning the legislature. It is the power they wish to purchase and when the power is limited the value of corraling the legislature is very low.
But the Left believed that the goals of liberalism, such as expanded rights, greater wealth, more equality, could best be achieved by conservative means -- the use of state power. So their dilemma was keeping the power in place for their own use and removing the corrupt businessmen from the arena. And the initiative process was one way they came up with for doing that.
The Left created a process called ballot initiatives. That allows majorities to vote for the redistribution of the rights and wealth of minorities. It does more than allow it, it encourages it. The result is being seen today. More state power is never the answer. It will always be grabbed by the powerful and used against the powerless. In this case the majority is using it against a small minority. And the only recourse the small minority has is to beg the majority of people to please not let it happen. A right should not depend on majority approval but the Progressives set up a system where that was inevitable.
Expanded state powers never stay in the hands of those who first created them. Eventually their enemies get hold of the reins of power and then those new state mechanisms get used for purposes very much in opposition to their original intentions. As much as I support sex education for the young I long felt that having such programs would eventually backfire. We have now had millions of federal tax dollars used to change the courses into anti-sex education. The same is true with the initiative process in California. The Progressives didn’t see it as a means of stripping minority groups of their rights (though they were then fairly weak on the topic), they wanted it to hurt the business interests. But the powers created for one purpose are easily diverted to contrary purposes.
The great conflict between the classical liberal and the socialist has been over precisely this issue. The classical liberals warned that the use of illiberal means (state power) to achieve liberal goals will eventually be perverted into the means for the destruction of liberal goals. That is what we are seeing with Proposition 8. True liberals know that both means and ends must be consistent. A true liberal wants Proposition 8 defeated but then ought not rest until the initiative process itself is abolished.
PS: I do see one role for initiatives, to veto legislation passed by the state assembly. As the nature of legislative law is to pander to special interests to confiscate rights from majorities to minorities, a people’s veto would allow the repeal of laws that do this. But the majority should not be allowed to reverse the process, that is to strip minorities of their rights or wealth. By acting as a break on legislative tendencies to pander to organized interests a people’s veto, as opposed to an initiative process, helps restrain the evils of government.