Analysis: Can Court Decisions Necessarily Override Referenda?

No, says MG, except in technical matters or if they’re against long-settled rights law e.g. to obvious popular disturbance or insurrection.

An interesting link: http://www.motherjones.com/kevin-drum/2013/06/supreme-court-prop-8-ruling-problem

“Do not attack the popular initiative –as some in the political extremes do–simply because you don’t like the decisions today: Especially when the popular initiative modifies/amends the Constititution ( Florida) , or has superior statutory ( direct statutes or recall of a statute, many places), or  a superior public policy standing ( California),  the initiative process IS  in natural law the originary and highest appeal court of the entire people as a whole as recognizers of  Law or right and so is supreme; it being understood as a court that logically precedes and only as an option might need other courts or subsidiary forms or elements of common self-governance  or their statutes–whether government, corporate, religious–and so its decisions override all such forms. If, as Thomas Paine suggests, the legislature is the petty ‘ jury of the nation’ or locality such as a state or region, its grand jury and last judge of appeal is the People assembled in discussion over time in no rush to judgement via e.g. the initiative or proposition, or more informally the clear trend of public opinion.

One may argue that it is the sum of broad civic conclusions or considered wisdom at the time and place: To whom else can one turn at the beginning or at the end, or rightly do if not met with initial consent but respectfully and reasonably listen to objections to continue discussion? It is so in every field: the state of the art and common practice will always be somewhat behind the times of the most able–and is meant to be so… and protect all persons from the sudden momentary enthusiasms, plausible yet destructive grand programs, of the most intelligent while yet improving the good proposals with the viewpoint of each person who wishes to be heard or consult the accumulated practice of sound common people and the wisest ancestors through history. The Federal system may ideally allow local models of such proposals to be tried, improved, or rejected again under the discipline  of popular initiative if called for in that locality–not unlike how scientific opinion is slowly changed or confirmed by the results of many laboratories or limited practice .

In the latest SCOTUS decision on California Proposition 8, in a democracy seeking guidance from natural law the appropriate method of a court of judges is to respectfully refer a rights-defective proposition back to the people for re-debate stating where matters have shed new light, or in that case at hand possibly send to the state courts for fair and open hearing of the Proposition 8 supporters. Letting the People proceed in taking time to be convinced something is indeed a right is better than well-meant judicial maneuvering that establishes a dangerous precedent for later mischief.

Do not throw the baby out with the bathwater: Pro-Libertarians advocate discussion on adoption of direct democracy ( as we see well placed in US-style Town Meetings or Switzerland) –and the consequent social discussion and fraternal dialogue it facilitates as the best method of proceeding so the ideas are understood, well-received and so adapted to the customs and temperament of the local People; do not proceed except as the speed of spread of public awareness and consent shall truly allow; and so set the firm foundation of general awareness and comfort so any reforms actually work and are easily corrected or improved at the local level. The will of the People informed by the calm and wise and also now increasingly aware of  the work of Libertarians to spread comparative and often best practices for the People’s assessment on understanding and better re-stating their rights is the sure foundation of any just society and discussion for beneficent improvement. Direct Democracy is informed and informing general social discussion among friends and neighbors who discover they have different views but must live together, so building over time true consensus…very different from the hasty majority vote we see in legislatures. Often a proposal improves in dialogue to e.g. assure convivial living among different groups or with new information invisible to the proponents.

Finally, for LI activists: ( and those who advocate consideration of the Libertarian Reform in whole or part–or minimally as normalization/statutory legalization of model Libertarian community) to remember: History shows  they’re best received as specifically advocates or guardians of right by protecting the process and being neutral mediators reasonable dialogue–even if the outcomes seem to the more aware temporarily undesirable–not passionate advocates of any mundane issue, social class, or transitory party. Therefore LI urges judges to exercise great care and see if they can use or revive a form of referral to popular re-discussion, that this would be the method most condign in a Libertarian eco-community, and let us realize that if the people answer no but e.g. 30% answer yes for rights that is far more proponents known than existed before and is an invitation to rally the 30%, better our message, and seek to respectfully address the real concerns of the 70% –whether by direct democracy, social practice, or coalitions. “–MG, founder www.libertarian-institute.info

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