As many of my readers are probably aware, the Minnesota State Senate just passed the Constitutional Amendment banning same-sex marriage in the state. Now it goes to the people of Minnesota to vote on the amendment and whether to make it a part of the Constitution or reject it. Whenever this type of thing happens, I think about our obsession as a nation with the concept of "letting the people decide". We are taught that the people are the source of governmental legitimacy and power. Though this is the case, and the tradition of western society from Locke and Rousseau to Mill and Tocqueville recognize this, it seems that somewhere we have gone off track in our thinking, for somehow our society now thinks that "the will of the people" should reign supreme with no restraints.
Though traditional western political thinkers have all stated that the people are the ultimate root of power, they almost all agree that the people are constrained by one thing, what is known as "The Rule of Law" . In American society, this rule of law is found not within the laws that legislatures pass,executives sign, or even the votes of people, instead it is found within the Constitutions of our respective States and Union.
But, as has been shown in Minnesota, we have rendered Constitutions nothing but scraps of paper to be written over if we feel like it. For when the people are able to vote on laws that directly violate the key principles and the essence of a Constitution, that Constitution and the rights guaranteed within it become worthless. If a document can be so easily changed by popular vote, then why have the Constitution at all? Instead of a block on the power of the majority over minority interests, all you have is the inconvenience of a vote to write over that block with popular sentiment. And when this has happened, the rule of law no longer applies, and populism reigns. That is what the vote in Minnesota today has heralded, and that is the legacy that Republicans in that state will have to deal with.