With the election over, religious righters are smugly insisting that "the will of the people" has spoken the final word on same-sex marriage. Voters in California, Arizona and Florida denied us the right to marry in their states. "The people's will" is one of those grand and ringing phrases that the righters like to throw around, and they're always pleased if "the people" vote to support their ideology.
But these ideologists have clearly flunked Civics 101. As government, "the people's will" is far from being the last word on anything.
As Abraham Lincoln pointed out, you can fool some of the people some of the time. By putting a lot of hype and lies on the air, a powerful multi-church lobby fooled "some" Californians. As a result, a slim majority of voters did what the lobby wanted and voted yes on Prop 8. But if "some of the people" had not been confused by deceptive advertising, they might have voted no on 8.
History gives us some scary examples of how "the people's will" can go off the deep end. In Germany in 1932, when the country was still a republic with free elections, the German people actually voted the National Socialist Party into power because they believed all the Nazi hype. In the U.S., well into the 1900s, the "people's will" was expressed by the white male vote, which kept women and people of color disenfranchised. Indeed, in the South, the white male vote ensured that slavery stayed institutionalized for nearly a century after our nation was founded.
So "the people's will" is a sword that can cut both ways -- sometimes with unconstitutional, even disastrous results. That's why the ancient law geniuses of Western civilization went into slowly, painfully tinkering with a working model of good government till they finally invented the idea of a republic. Not only did it vest sovereignty in the people, but it separated the various powers of government in order to create greater flexibility -- the so-called "balance of powers."
The word "republic" comes from Latin res publica, meaning "the people's business." Our U.S. balance of powers is traditionally described as three-fold: the executive branch, the legislative branch and the judicial branch. I would add a fourth -- the electoral branch. In the 20th century, the popular vote surged into greater power with the broadening of voting rights -- especially since the 1980s, when the trend in direct voting on statewide initiatives and propositions got started.
Result: our nation can always put these four dynamic powers into play with each other. They can keep each other in check, ensure justice, correct abuses and open up new directions. The four powers are like a wonderful compass with its four cardinal directions -- they can tell us when we're lost, and get us headed in the right direction. All are set forth in the U.S. Constitution as well as in state constitutions and city charters.
Religious righters scream a lot about how the U.S. should stop screwing around and apply the Constitution strictly (what they really mean is that their own beliefs should be the only ones protected by the Constitution). But they don't seem to understand that the Constitution (as well as its amendments, the Bill of Rights) can't be put into action without applying some or all of these four dynamics.
Those "Godless" Romans
To Americans who believe that "our country was founded on biblical principles under God," it must come as an awful shock if they finally do their history homework. They learn that our founders adopted that republic model from [gasp, shudder] the ancient Romans. You know -- those people in togas that we've all seen in a million Hollywood movies, who believed in whole trainloads of goddesses and gods, who allegedly lived for nothing but sex orgies and bloody gladiator games. Actually, those people in togas were pagan geniuses at engineering of all kinds, and that included the social engineering called government.
Why did our "godly" founders have to reach clear back to the times of "godless Rome" for good government? Because European Christianity had absolutely nothing to offer on that front. Up till the 16th century, Christianity had elected to govern mostly through monarchies and empires, where heads of state could seldom be held accountable by their long-suffering people, even in the worst-case scenarios. Unquestioned religious authority was best protected by kings and emperors whose civil authority couldn't be questioned either.
Our founders had had it with monarchies and empires. By the time their war of independence with Britain was won and they sat down to draft a new government in the Constitutional Congresses, they were looking for something better. As educated men who knew their ancient history, they decided to update and customize the republic model for the New World.
The Roman republic was founded in 509 BCE, by a confederacy of Italian tribes who had had it with a cruel and corrupt monarchy. Historians usually describe it as having a three-fold separation of powers that acted in balance with each other. There was the advisory branch -- meaning the Senate, which was comprised of patrician elders who set policy. There was the legislative branch -- meaning tribal assemblies where the 35 tribes voted in direct democracy to make decisions and elect public officials. And there was the executive branch -- meaning the actual officials who did their jobs. But a judicial power was there too -- the Romans had a law code and jury courts to settle issues.
In peacetime, the Roman republic had no head of state. During times of dire need, Rome could elect a war-time chief executive and give him some extraordinary emergency powers. But he held office for only six months, after which he was supposed to step down. The tribes were understandably paranoid about the idea of a military leader staying in power, creating a dictatorship. Unfortunately this threat finally became a reality, when the republic collapsed in civil war; in 27 BCE Augustus Caesar became the first emperor. Out went the balance of power. In, with the worst of the emperors to follow, came all the abuses and horrors of unchallenged imperial decree that one can imagine.
When Christianity took over in the 4th century, it continued to utilize anything useful in the old Empire's MO. By the Renaissance, when independent nations started carving themselves out of the Holy Roman Empire, the first modern nation to revive the old idea of a republic was the Dutch confederacy in 1595, after their successful rebellion against the Holy Roman Empire. Dutch colonists brought their radical governing ideas to the New World.
So we Americans owe a debt of gratitude to the Dutch, even though we like to ignore them in our history books and pretend that America was the "first" to re-discover the republic.
Tweaking the Model
Today our country is still in the process of updating and tweaking the way a republic can work. The Roman model was far from perfect. It permitted slavery...along with a process by which slaves could be freed if a master agreed. Acceptance of the Roman model with its slavery tradition by the new United States in 1787 was one reason why slave-owning managed to keep its grip on Southern society for so long. But the staggering human abuses finally pushed the American people to abolish slavery.
A similar issue affected women -- in ancient Rome, they were not allowed to vote or hold office or be politically active. So the Roman model, with its tradition of second-class citizenship for women, doubtless influenced our founders to deny any voting franchise to women in the first state constitutions. But we have fixed that part of the model too. Best of all, we Americans gradually got rid of our privileged racist voter class, and granted suffrage to almost every class of person.
Oh, and our founders added a permanent head of state, that they called the President, and they put him in command of the military, in the old Roman style. But they were paranoid enough about power take-overs that they limited his terms to four years.
Right now the righters are fuming about "activist judges who legislate from the bench." In the case of Prop 8, they're fuming against the U.S. courts that found in favor of same-sex marriage in some way. In California they also felt stymied by the state legislature, which twice voted to permitted same-sex marriage. So the righters have resorted to a classic shopping around on "balance of power." They shifted to the state electorate, hoping that the popular vote would cement their bigoted definition of marriage into place for all time. They counted on their enormous access to church contributions in order to drench the media with enough propaganda to get the job done.
But the "will of the people" does NOT trump the courts. So we advocates of same-sex marriage now get to do our own shopping with the balance of powers. We activate the judiciary in our own defense. Twenty-four hours after the California polls closed, three lawsuits were filed that challenge the "yes on 8" vote. That is exactly what is supposed to happen in a republic.
In the balance of powers, no single power trumps the other powers on a permanent basis. Americans like to say that federal law trumps state law, but even that saying isn't entirely true, because the federal government can go horribly off the deep end too -- as we've seen the Bush administration do after 9/11 and the civil-liberties issues around national security, when powers with the scope of a Roman dictator were granted to the President.
Who Trumps Whom?
Whenever the federal government "trumps" its way into too much power and abuse, we have the recourses of a balancing power. We can go to the courts. Or Congress can rebel and legislate in a way that compels the President to backtrack.
Or the voters themselves can use a general election to put a new party in power -- which is precisely what just happened. On November 4, the "will of the people" really came through for America. It covered itself with glory. Unlike what happened in California, "the people" saw through all the lies and propaganda thrown at issues by the religious right and its Republican puppets. The "people willed" to nix a Bush administration that had disgraced itself in the eyes of many Americans and lost respect with many nations around the world. And it willed to do that by sending a young black President, our first, to the White House.
In other words, the process of redressing, fixing, compensating, reversing when things go horribly wrong, is always in motion. It's like an ever-moving ocean. This is how a republic that is also a true democracy can work.
The greatest danger to a republic is when all the powers become corrupted -- when the executive branch has seized dictatorial power, when the legislative and judicial branches are too weakened to oppose it, and the electorate is too apathetic or too terrorized to express its will. The United States already came perilously close to this point -- it remains to be seen if we can pull back from the brink under Barack Obama's administration.
In the case of same-sex marriage, the judges who found in favor of it were not "legislating." To say they were is to agree with right-wing ideology, which wants to make the judiciary less powerful than the legislative or executive power. These judges were simply doing their job, which is to interpret, not legislate. But their interpretation does have the force of law. That power was assigned to them by the Constitution and the founders of our country.
So, as these new marriage lawsuits move forward, I hope that all LGBT people, and Americans of good conscience, will support them.
As I write this, protest marches and petitions are exploding everywhere. They are the natural result of how emotional and angry we all feel about the passage of Prop. 8. But street activism probably won't be as effective as a solid, well-aimed use of the judiciary. Protests don't get bad laws and policies changed. Using the balance of powers is what gets change.
We need to find out what the U.S. Supreme Court says about our equal protection under the law where marriage is concerned. Has the Court already been so "packed" by Bush-appointed conservatives that it can't render a fair decision on our issue? We'll have to wait and see. It's important to remember that the U.S. Supreme Court was once pro-slavery. But with time, the Court turned 180 degrees on this. Today, if the high court declines to grant equal protection to LGBT people, we might have to wait till the Obama administration shoehorns a couple more liberal judges onto the Supreme bench.
Whatever happens, it will be classic balancing of powers in action.
For more great Roman history that shows what liars the religious right are, check out my piece about the Goddess of Liberty on U.S. coins.