The brilliant operating idea of the founding fathers was to create a Constitution which would protect the people against the government and protect the government against the mob. Obviously, that is a very fine line and requires continuous balancing that the experiment does not lurch too far toward tyranny by government or too far in the other direction toward tyranny by the majority.
Certainly, the bias is toward protecting the people from the government.
Put another way, when the will of the people is expressed in an unequivocal manifestation such as a referendum in California, that Democratic impulse should be accorded the greatest deference and protected from being nullified by government. To justify nullifying the expressed will of the people, there must be at minimum a provision which is repugnant to the Constitution.
In other words, the right of the minority must be grounded firmly and I might add, explicitly, in the Constitution to justify setting aside the will of the majority. The often cited example is that it's free speech which by definition needs protection against the will of the majority precisely because it is unpopular. If we define the utterance as free speech, it is protected against the will of the majority. And, especially is it protected against the will of the government which may or may not pose as representing the majority of the people.
I am at a loss to understand how proposition 187 represents a threat to constitutional democracy as it sought to "prohibit illegal aliens from using health care, public education, and other social services in the U.S. State of California. "
Obviously, without reading the case, the resort was to the 14th amendment and the equal protection of laws. The argument is that the amendment elevates persons to the level at which they enjoy the same rights as citizens. To come to this conclusion is utterly to ignore the postbellum history of reconstruction etc.
The 14th amendment was added to the Constitution to protect a minority, former slaves, from disenfranchisement by a white majority in the South and in the North as well. It accorded them citizenship and provided that, as citizens, they should receive the same treatment as other citizens. I believe that by seizing on the language and not the historical meaning of the 14th amendment, activist courts have actually subverted the meaning of the Constitution as intended by the original framers and subsequent amendments.
Enter Newt Gingrich.
How disruptive of our "rule of law", as asserted by no less an eminence than George Will, do Gingrich's remedies look in this perspective? Is it disruptive of our constitutional system to disenfranchise courts which pervert the Constitution in order to subvert the expressed will of the people?
