Raw Majority Power: Why Checks and Balances Matter

An epic battle played out on two levels at the California Supreme Court on March 5. On a surface level, attorneys fought over a technical issue of whether the Proposition 8 prohibition on gay marriage represented a revision or an amendment. On the deeper level, the question asked was whether there are any limits on the majority to impact the rights of the minority.

It was a powerful argument - that the people of the State of California have the “raw power” to change the state constitution in any way that they please. Ken Starr, an esteemed advocate, may have won the battle but lost the war when he asserted that, “the right of the people is inalienable to change their constitution through the amendment process. The people are sovereign and they can do very unwise things, and things that tug at the equality principle.”

Chief Justice Ronald George stretched Starr’s argument to explore its dimensions. He leaned in and asked a hypothetical - if Proposition 8 said that homosexuals had no right to form a family relationship or raise children, could that still be done by amendment? Starr said it could. Then George took the argument to the constitutional wall – could the voters also remove the right to free speech? Starr said yes, the voters have this right.

Essentially, what Starr argued was that the people have an inalienable right to take away the inalienable rights of others. Free speech is perhaps the most fundamental of fundamental rights. The people, in Starr’s argument, would also have the power to remove the right to free exercise of religion.

Starr's an ass. Amendment XIV guarantees all citizens' rights that are enumerated in the Constitution specifically to the citizens of the several states. Amendment X says, very specifically, that powers NOT granted to the United States and NOT prohibited by the Constitution to the States, are reserved to the states respectively, or to the people.

1) ''Free speech'' (sadly, subject to redefinition ad hoc by the court system) is ensured by Amendment I.
2) Amendmenr XIV prohibits the several states from barring or infringing upon ''free speech''.
3) The ''people'', however defined, constitute the government of each of the several states.
4) Amendment X does not grant the power to infringe upon ''free speech'' to the United States, and DOES prohibit that power of infringement from the several states, and thus to the ''people'' of the several states, and more specifically any state in particular.

Ergo, the people of any state do NOT have the power to infringe upon ''free speech''.

Q.E.D., and Starr is STILL an ass.

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