How Much Power to the People?

I have returned many times in these letters to the question of democracy and how it should or could operate in the context of our American republic and its commitment to the free exchange of ideas, freedom of religion, and (particularly) freedom of speech. Those values are simple to embrace in theory, after all—what would be the alternative anyway, being opposed to freedom of speech?—and neither is it especially daring to opine, as I also often have, that freedom of speech is meaningless if it doesn’t extend to unpopular, including extremely unpopular, speech as well. The last time I wrote about this topic was when the controversy about the Met’s production of The Death of Klinghoffer was raging. And it was in that context that I wrote, meaning it wholeheartedly, that the issue to be debated was not whether the librettist had the right to express her opinions in a public document or even if the Metropolitan Opera has the right to mount whatever productions it wishes on its own stage…but whether mounting that specific opera at that specific time was the right thing for them to do, the just and moral thing…as opposed to something merely permissible by law. Clearly, producing The Death of Klinghoffer was the Met’s legal right. But I felt then and feel now that the opera was insulting to the memory of a Jewish martyr who died al kiddush ha-sheim and that that, in and of itself, made its production morally repugnant to me personally. But I did not go so far as to argue that the Met should have somehow been banned from producing The Death of Klinghoffer. Nor do I believe that the laws that prohibit defamation or calumny should be interpreted so broadly as effectively to prohibit citizens from speaking harshly, critically, or even insultingly about each other. Lying in public about someone and publicizing untruths in that person’s regard should be prohibited, not interpreting others’ words or actions in whatever light someone chooses, including harsh, angry, unforgiving light.

And that brings me to the bizarre case of one Matthew G. McLaughlin, a California lawyer who is attempting to gather the requisite 365,880 signatures necessary to place a home-grown initiative on the state ballot for the consideration of its citizens, whose approval would effectively make the proposition into law in California.  The notion that the citizenry should play an active part in its own governance will sound rational enough to most Americans and, indeed, many who live in states other than California are envious of the freedom Californians have to bypass the legislature entirely and, in effect, to enact laws on their own without the involvement of their elected officials at all. It sounds appealing to me too! But how different all that fine rhetoric sounds when considered in light of the details of the McLaughlin initiative: it is his proposal not only that same-sex sexual relations be made illegal, but also that the law mandate the execution by firing squad of parties found to have engaged in such relations. (Just to make the proposal more bizarre, the proposition defines same-sex relations as instances in which an individual merely “touches a person of the same gender for purposes of sexual gratification.”)  By comparison, the distribution of “sodomistic propaganda” to underage individuals would be punished merely by a one million dollar fine, ten years’ imprisonment, or—less bad, or at least less consequential, than the alternatives—deportation from California for the rest of the offender’s life.  Are you still feeling that citizens should be free to propose whatever laws they wish and, supposing they get enough support (the precise figure in California is 5% of the number of people who voted in the previous gubernatorial election), place them on the ballot for the approval or disapproval of the citizenry? It sounds so reasonable and so democratic—and so totally in sync with the values for which our republic stands—when considered in a vacuum, and yet so grotesque when considered in light of the actual kind of laws people are capable seriously of proposing for the consideration of the public.

To label the McLaughlin initiative as morally monstrous is almost to say nothing at all. Nor is there even the slightest chance of 365,000+ Californians signing onto the initiative, let alone of it becoming law. Nor is there any real question that such a law would not be thrown out by the courts instantly even if it did somehow garner enough votes to pass. So the gay citizens of California have nothing to worry about and nothing to fear….but that is not the question I’d like to discuss, which is far more complicated than whether or not McLaughlin’s barbaric initiative is a good or a bad idea. The question I’d like to ask is about drawing the line between granting the citizenry the right to self-rule and refusing to allow bigoted, hate-filled propositions even to be set before the electorate for their consideration. Where exactly is the line between protection and paternalism, between allowing for the free expression of ideas and allowing the free expression of ideas unless they’re revolting and repulsive? 

Does the fact that our courts are charged with overriding, thus voiding, legislation that violates the Constitutional rights of the citizenry have as its natural corollary the notion that any citizen should be permitted to put forward any proposition at all for his or her co-citizens’ consideration? In other words, should we muzzle those in our midst who hold unpopular, including grotesquely unpopular views, merely because the views they espouse are repugnant to most, or should we permit the public promulgation of any idea at all precisely because the courts are charged with prohibiting legislation that violates citizens’ civil rights? The notion that freedom of speech must extend to unpopular speech is a cornerstone of American culture. But should that freedom extend to the possibility of proposing laws…or does that come too perilously close to the possibility of a prejudiced, angry majority materially altering the basics of American legal culture merely because it can? If you’re not sure where you stand and you don’t mind feeling even more uncomfortable, imagine that the proposition in question outlawed circumcision or kosher slaughter and made engagement in either act punishable by death. Would you still be that willing to consider freedom of speech utterly sacrosanct? Or would placing limits of the kind of legislation that citizens can sponsor suddenly seem rational and reasonable?

The foundation stone upon which American society rests is the freedom of the individual. Looking at the free elections of 1933 in which 43% of German voters voted the Nazis into power makes us all shudder—how much simpler it would be to condemn those elections if they had been crooked! And yet none of us thinks that the fact that the Nazis won somehow legitimized the reign of terror that ensued, leading eventually to war and the deaths of scores of millions. Was the Second World War then the fault of the courts? Or was it the fault of the electorate for choosing to be governed by madmen? Or was it merely the fault of the perpetrators themselves and not those who voted them into office? Surely, the cause of justice would have been served by a powerful, independent judiciary striking down law after law that the Nazis managed to have voted into law in the Reichstag. But that, of course, didn’t happen, nor could it have happened once the judicial system itself became corrupt and debased. Does the fact that we in our nation have a fiercely independent judiciary mean that our citizens should be permitted to propose whatever they wish because our courts will surely annul all unjust laws? Or does history teach us all too clearly not to count on the courts—which in our nation do not come with their own militia to protect them and safeguard their integrity—and not to permit the citizenry even to consider laws that are rooted in irrational hatred, prejudice, bigotry, or intolerance?  That is the question the McLaughlin initiative throws down before us for our consideration.

Our Torah can be read to propose a different model for civil governance, one rooted in obedience to God and in the sense that no human initiative can be considered legitimate unless it derives directly from divine law. Indeed, our enormous library of legal books and texts are all framed as efforts to translate the values of Scripture into the warp and woof of daily life as real people actually live it. In a secular society, that thought works as well, albeit with the Constitution instead of the Torah as the foundational document upon which the republic rests. But that, in the end, should be the determinant. In my opinion, no proposition should be placed before the electorate for consideration that, if enacted, would by its nature violate the rights of citizens. To find virtue in allowing such laws first to be passed and only then struck down or not struck down by the courts is to place too much power in the hands of people interested primarily in pursuing their own personal agendas. To sneer at the McLaughlin proposition because it is so patently and obviously wrongheaded and morally repugnant…but then to throw up our hands and feel that we are somehow betraying our national ideals by not permitting the populace to vote on it…that, I believe, is a kind of abdication of moral obligation on the part of the government. Kamala D. Harris, the attorney general of California, should simply refuse to put the proposition on the ballot and dare its sponsors to sue her in a court of law if they feel their rights unduly trampled upon by her decision.