Coyote Blog

Since I am part of a group working to pass a ballot initiative in Arizona to allow same sex marriage in this state, I was obviously pleased with the decision to strike down DOMA yesterday.

However, the decision not to rule based on lack of standing on the Prop 8 suit creates a real mess above and beyond any implications for same-sex marriage.

Proposition 8, a California initiative to ban same-sex marriage that likely would not pass today, was introduced and passed five years ago because the authors of the initiative knew it was a step legislators would never take but that they thought (correctly at the time) that the voters would support.  In fact, in a nutshell, this is exactly what the initiative process was meant to achieve.  If citizens think the legislative process is broken on a particular issue (e.g. taxes, where legislators have entirely different incentives vis a vis raising taxes than do taxpayers), they can do an end-run.  In a sense, this is exactly what we are doing in Arizona with our Equal Marriage initiative, though of course with the opposite desired end result from Prop 8.  But just as in that case, we do not have high hopes of the current legislator passing such a Constitutional Amendment, so we are doing it through citizens initiative.

The problem in the Prop 8 case was that when the law was challenged in court, neither the governor nor the legislature was willing to defend it in court (remember, that it was passed over their opposition).  Given the very nature of ballot propositions and the reasons for them discussed above, this is likely a common occurrence.  But the Supreme Court refused to rule on the case because, as I understand their argument, only the administrative or legislative branch of the state government has standing to bring the appeal (ie defend the original law that was overturned by a local Federal court).

This is a really bad precedent.  It means that any initiative passed by citizens that is opposed by the current state government is enormously vulnerable to attack in courts.  If the government officials are the only ones who have standing, and they refuse to defend the law, then it will lose in court almost by summary judgement.

There has got to be some process where courts can grant citizens groups who filed and passed such initiatives standing to defend it in court.  Certainly there could be some judicial process for this, almost like the process for certifying a class and its official representative in a class action suit.  Without this, citizens initiatives are going to lose a lot of their power.

Update:  Scott Shackford at Reason writes

So should we be worried? Could the reverse – voters approve gay marriage recognition only to have the state refuse to back it – happen? What if the voters approved term limits for state legislators and they just ignored it?

The majority decision was not unsympathetic to the argument (incidentally, it’s interesting to see how polite these arguments are when you end up with such an unusual combination of justices on each side) but firm in that: 1) Getting a ballot initiative passed does not make you an agent of the state with standing; and 2) If you aren’t an agent of the state who is expected to defend the law, then you have to have proof of a personal harm and the proponents do not. Arguably, if the situation were reversed (the state refusing to defend an initiative recognizing gay marriage), it’s easy to see how they could allow standing and the outcry that would cause. A person denied a marriage license from a same-sex ballot initiative may be able to prove harms from discriminatory policies and earn standing.

I had not thought of it that way, but it is interesting that the Court could not find any demonstrated harm to straight petitioners from the legality of same-sex marriage.  I suppose that is a good sign.

South Bend Seven helped me think through the more general point I was trying to get at in this post.  I am simply sick of the incessant whining from this administration that it's too hard to get legislation through Congress and that difficulty justifies the Administration to start unilaterally exercising legislative powers via executive decree and the stretching of numerous regulatory authorities.

But here is the deal - its supposed to be hard to add new laws and, particularly, to expand the power of the government.  Hard, but not impossible.  Even when something is ruled unconstitutional, there is a mechanism to amend the Constitution.  In fact, we have actually done it 27 times.  But nowadays we don't even want to bother.   We have Presidents of both parties that just invent new executive powers and who put pressure on the Courts to agree to broader and broader Federal powers.

I am not sure we will ever have another Constitutional Amendment in my lifetime.  Already at 41 years since the last one (not counting the odd 27th amendment) this is the longest span in history without an Amendment being passed.  We just can't be bothered to do things the right way.  Don't believe me?  Does anyone believe that if the income tax was invented today, anyone would bother with its Constitutional issues and decide an amendment is necessary.  Or even more telling, in 1917 we honestly believed a Constitutional Amendment was needed for the federal government to regulate and ban alcoholic beverages.  If that's true, where is the amendment that is required to ban marijuana, cocaine, or heroin?  We dond't bother with one, because by the time we regulated these substances we had pretty much abandoned the concept (written into the document in several places and reiterated in the 9th and 10th amendment) that the Constitution conferred enumerated powers.  Because that just made it too dang hard for politicians to exercise more and more power over us.

My column this week in Forbes elaborates on a theme I discussed last week in this blog.

I am not a big fan of prohibition, or the income tax (16th Amendment) before it, but in some sense these come from a better time.  Instead of dealing with the Constitutional problems of these initiatives by having a series of judges stare at the Constitution with their eyes crossed until the problem disappears, they actually wrote and passed a Constitutional amendment.  The took the wording of the Constitution seriously.

Consider alcohol prohibition.  Today, would we even bother modifying the Constitution?  After all, we’ve driven a forty year war on drugs — with massive spending, highest in the world imprisonment rates, militarization of our police, and frequent slashes into the heart of the Fourth Amendment — with nary a hint of the need for a Constitutional Amendment.  In fact, in Raich, the Supreme Court ruled that medical marijuana legally (under state law) grown, sold, and consumed in California could still be prohibited by the Federal government under their Constitution powers to regulated interstate commerce.  It seems almost quaint today that we sought a Constitutional change for Prohibition.

The other day I was watching a show on extreme tax protesters, specifically those who believe the entire income tax system to be illegal and thus they actually owe no taxes.

While I am sympathetic to issues folks have with taxation, from a legal and Constitutional perspective the income tax actually comes from a better, almost more quaint time.  Why?  Because instead of dealing with the Constitutional problems with the income tax by having a series of judges stare at the Constitution with their eyes crossed until the problem disappears, they actually wrote and passed a freaking Constitutional amendment.  Granted that the amendment was passed under false pretexts (e.g. that the tax would never apply to more than the top 1% of earners or earners with less than $1 million in income).  But they sought an amendment.  The took the wording of the Constitution seriously.

In fact, the 18th Amendment (prohibition) and the 21st Amendment (its repeal) were the last times the Constitution has been amended to give or take away Federal powers (everything since has been related to voting and elections).  Ever since 1933, we have effectively added non-enumerated powers by essentially ignoring the Constitution, such amendment process being seen as too much of a hassle to stand in the way of critical regulations on seat belts or marijuana.

Everyone knows it took a Constitutional Amendment to get alcohol prohibition, but think about this in today's world.  Would we even bother?  No way!  Congress has taken on the power to regulate or prohibit just about anything it wants by stretching the commerce clause form its original meaning of preventing states from setting up barriers to interstate trade to an all-encompassing power of fiat to do anything Congress freaking wants.

My kids and I were watching 2081, the excellent short movie based on the Vonnegut short story "Harrison Bergerson."  That story posits a government department of handicapping that solves the inequality issue once and for all by handicapping the most able down to some lowest common denominator.

Anyway, the intro to the movie said it was based on something like the 280th amendment to the Constitution.   But I don't think we are ever going to get that high.  Certainly those who want more government power don't need any more amendments, as the Constitution is no longer constraining in the least and an increasing number of the Bill of Rights are either bad jokes (9,10) or are being gutted as we speak (2,4).

I don't expect another Amendment in my lifetime.  The only way I think we will see one is if we get some sort of libertarian revolution, and the only Amendment we would need would be the one saying "Look, we were't freaking kidding in the 10th amendment, go read it again."  OK, maybe some clarity on the commerce clause would be good as well.

I am not a big fan of the income tax, or of Prohibition, but it was a better world when we knew we had to at least amend the Constitution to do these things because we took the enumerated powers seriously.