WHILE Democratics were wiping the champagne from their lips this past week, conservatives scored two huge victories, one in Virginia and one in Michigan. Both amendments constitute major steps backwards for the rights of minority groups. Voters' ability to ban gay marriage or affirmative presents conflicts of interests that ignore the very idea of minorities in the first place. If this means that there are some issues that citizens simply cannot vote on, so be it.
In a democratic society such as ours, it seems preposterous that voters cannot decide an issue. After all, most would consider that the basis of our government in the first place. In reality, though, our country's founders very purposefully chose a representative government. This choice represents the belief that our citizens as a whole cannot effectively govern over the nation.
With an issue such as affirmative action, for example, the problems seem very apparent. What incentive is there for a majority group to support affirmative action, favoring minorities and, by implication, disfavoring the majority? A member of the majority cannot possibly understand what kinds of biases a member of a minority group may feel on a daily basis. The member of the majority may feel that racial or ethnic bias has been eradicated. And even if he or she doesn't truly believe this, there are incentives for the majority group-member to act (or vote) as if he or she believes that we're now living in the world of an even playing field. For example, some majority group members might believe that their son or daughter has a better chance of getting into a prestigious university without affirmative action boosting up minorities. Such incentives can take precedence over the liberty and rights of others for an individual when considering how to vote, and because the majority is obviously larger than the minority, an amendment banning affirmative action will pass. More people receive personal (or familial or otherwise) gain with its ban.
The ability to vote for a constitutional ban on gay marriage is different than the affirmative action ban, but it has its own problems. Gay marriage, as so many obviously pointed out, affects only homosexuals. Its ban does not (or, at least should not, if properly worded) affect the rights of heterosexuals, either positively or negatively. Note how this contrasts with affirmative action, where a member of a majority group may see affirmative action as affecting their rights negatively.
Thus, some may believe that voting on such an issue presents no conflict. This brings me to my second point: The collective voters of a state (or even of the nation) are no experts in constitutional law or the facts of a particular case. If the proposal does not affect those who are voting, what exactly are voters using to make their judgment on an issue? Surely, no one can believe the majority of voters have thoroughly studied the amendment with great detail, examining evidence both in favor and against. Instead, they use personal incentive (as in the affirmative action case) or inherent biases based on their upbringing and culture (against homosexuals, for example). These are not criteria that should be used to determine the rights of others.
The results of such drastic changes based on voters' decisions have already reared their ugly heads. Take California's 1996 Proposition 209, for example. The measure banned affirmative action at state institutions, including at universities. In 1996, 7.8 percent of freshmen enrolled at University of California colleges were African-American, while now, only 4.3 percent are African-American. Perhaps even more tellingly, UC-Berkeley Chancellor Robert J. Birgeneau told the Los Angeles Times in a March 27, 2005 piece that, "Proposition 209 has created an environment that many students of color view as discriminatory." I strongly question whether this example -- one in which an anti-affirmative action initiative has gone terribly wrong -- was what the Michigan voters were pondering on Election Day when they chose to support an anti-affirmative ban.
The alternative to voters deciding on these issues is allowing the courts to do their job. These decisions have been attacked as being "arbitrary" or effectively creating legislation, but these labels cannot be any worse than enacting society's biases as laws. In the end, I would prefer nine well-educated, accomplished justices on a state or national Supreme Court to decide issues such as affirmative action or gay marriage based on constitutional law than to leave the matter to citizens who base their decisions on nothing more than personal gain or irrational prejudice.
Rajesh Jain is a Cavalier Daily associate editor. He can be reached at rjain@cavalierdaily.com.
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