The Constitution Belongs to Its People

On Monday and then Wednesday, the Charleston Gazette carried two editorials decrying the “oppression” of minority rights at the hand of the majority. This notion has, admittedly, troubled me this week for a couple of reasons.

First, that the ACLU of WV, the author of the first editorial, and the Gazette would hold in such low esteem the democratic process stumps me.  On the one hand they argue that the Constitution of West Virginia protects the rights of minorities, but are forced to concede that that very document was ratified by a vote….of the majority!  It seem odd that at one time they would support the democratic vote to ratify a document of purportedly “minority rights,” and at another time decry it as “majority oppression.”

Second, the ACLU very clearly reiterates what its representative testified to before the West Virginia Legislature.  Their position is that to deny same-sex couples from marrying would be a denial of their constitutional rights.  The only logical effect of that opinion can only be that they believe the West Virginia Defense of Marriage Act is unconstitutional – proving that not only were we correct in asserting that there is an effort to redefine marriage nationwide, that effort is subtly, but surely, creeping into West Virginia.  No doubt, FairnessWV would share their opinion, making it a matter of when – not if – the WV DOMA will be challenged in court.

Third, specific to the question of allowing West Virginians to determine by which laws they will consent to be governed, vis-a-vis the definition of marriage.  Both editorials, in addition to what has been pointed out above, suggest two things.  First, that any rights you and I posses were created by government, but that the majority of citizens voting should never dare remove rights protecting the minority.  Under that logic, one could argue that it wouldn’t take a majority vote.  A simple stroke of the governmental pen would suffice, for the power to create implies the power to destroy.

The other issue is that they both would not only be pleased to see it, but believe the Constitution requires that judges must settle this issue.  In other words, both the Gazette and the ACLU would prefer judges declaring which laws we will and will not be governed by to allowing the process that affirmed the constitution in the first place to do so.

I must refer them to the California Supreme Court that that, in its most recent opinion on the question of marriage and the democratic process (Strauss v. Horton), upheld the right of citizens to amend their state constitution.  They were asked to decide that very question.  Said the justices:

[T]he principal issue before us concerns the scope of the right of the people, under the provisions of the California Constitution, to change or alter the state Constitution itself through the initiative process so as to incorporate such a limitation as an explicit section of the state Constitution.

You may recall that the petitioners in that case suggested that the people might have the right to amend their constitution, but they could not revise it.  The justices, ultimately, did not buy that this was a revision and concluded:

In the absence of such an express restriction on the initiative power, and in light of past California authorities, we conclude that the California Constitution cannot be interpreted as restricting the scope of the people’s right to amend their Constitution in the manner proposed by petitioners.

In other words, to quote from Article II, Section 2-2 of the Constitution of the State of West Virginia:

The powers of government reside in all the citizens of the state, and can be rightfully exercised only in accordance with their will and appointment.

No longer am I troubled. The Constitution belongs to its people.  There is no legitimate reason to deny West Virginians the opportunity to vote on the legal definition of marriage.  If we do deny them that right to self-governance, how long will it be before a judge responds to the ACLU’s request to redefine marriage on your behalf?