Posted by: captainfalcon | May 8, 2012

More on Amendment One and Direct Democracy

Two posts back, I argued that it is reasonable to interpret North Carolina polling data as indicating that a majority of North Carolina voters want to outlaw gay marriage; a majority want to allow civil unions; and a majority want to outlaw gay marriage more than they want to allow civil unions. Thus, if faced with a choice between (1) outlawing gay marriage but keeping civil unions and (2) outlawing both gay marriage and civil unions, the North Carolina electorate chooses (1). But if faced with a choice between (a) outlawing both gay marriage and civil unions or (b) outlawing neither, the electorate chooses (a). Of course, if faced with a logically exhaustive set of choices — (1) ban gay marriage and keep civil unions; (a) keep gay marriage and ban civil unions; (2/b) ban both; (iv) ban neither — the North Carolina electorate chooses (1), the only constitutional change actually supported by a majority of North Carolina.

Amendment One presents the non-exhaustive choice between (a) and (b). As a consequence, it is an abuse of North Carolina’s system of constitutional amendment. Amending the North Carolina Constitution is a two-step process. First, the legislature must pass an amendment. Next, the amendment is submitted to the electorate in a legislatively referred referendum; only if a majority of voters approves the legislatively-approved amendment does it become law.

The North Carolina amendment process only makes sense on the assumption that each change to the North Carolina Constitution ought to be supported by a majority of North Carolina voters — that it ought to directly reflect the will of the people. Amendment One violates this principle. Because it does not contain a logically exhaustive set of choices, it actually presents two changes to North Carolina’s Constitution only one of which is supported by the majority of North Carolina’s electorate.

This situation also illustrates a special (but curable) problem with legislatively referred referenda. On its face, this permutation of direct democracy might seem to evade the traditional, Federalist 10, objection to direct democracy. The traditional objection is that direct democracy is more likely to select bad legal norms than is representative democracy because the electorate lacks the practical wisdom of the legislature. This criticism doesn’t directly apply to legislatively referred referenda, as the questions referred must first have been adopted by a representative body. Arguably, with legislatively referred referenda you get both the preliminary filter of republicanism and the majoritarian legitimacy of direct democracy — the best of both worlds.

Amendment One both belies this — legislatively referred referenda do not necessarily confer majoritarian legitimacy — and also points to a specific problem with legislatively referred referenda, which is their corrosive effect on representative democracy. That is: when Amendment One passes, the changes it effects on North Carolina’s Constitution will be the result of a majority of the North Carolina electorate’s (Hobson’s) choice. They will be to blame. Concomitantly, North Carolina’s legislature will not be to blame. Its accountability is diminished and, insofar as representative-democratic theory is correct that accountability leads to enlightened majoritarianism, so too is its capacity for good governance.

Both of these criticisms lacks bite, however, if constitutional amendments are presented as sets of logically exhaustive choices. Under those conditions, legislatively referred referenda become more difficult to condemn from within the confines of representative-democratic theory (though external considerations, such as efficiency, may nonetheless provide the ingredients of a critique).

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