We Need Constitutions to Protect us from the Tyranny of the Majority

Legal arguments start March 5th in the California Supreme Court about Prop 8, where the majority of Californians voted to overturn the S. Court's own ruling that prohibiting gays from the institution of marriage was unconstitutional.

Attorneys who say to "uphold the decision" are making democratic arguments like "the people have spoken." But the U.S. system is not set up to allow the tyranny of the majority to overrule and squash the rights of minorities. We have a constitutional democracy, not a pure democracy. Minorities may be misunderstood and where they cannot win popularity contests, they can win when the playing field is not public preferences but solid principles of justice and equality.

As UC Irvine Law Professor Erwin Chemerinsky points out, "The whole point of a constitution is to limit what the majority can do."

Interestingly, the CA Supreme Court also had to overrule a vote, in a campaign led by Ronald Reagan, that allowed people to discriminate on the basis of race in rental and housing sales decisions, as the Sacramento Bee reports.

Fortunately, the California Legislature gets that voters alone did not have the right to adopt the gay-marriage ban, arguing it needs to originate in the Legislature, gain two-thirds approval in that body and then win approval by voters.

It should be interesting to follow the arguments and see what the Court does -- vote for its own power in our system of checks and balances, or defer to the will of the people.