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Prelude to Anarchy
by Daniel Oaks
27 February 2004Triangle

If the will of the people can be overturned by one, unelected, self-appointed man -- the mayor of San Francisco -- can we truly claim to be a democracy?

Obedience to a government is maintained by two methods: Force, and Tradition.  Force need not be elaborated upon.  Tradition exerts its influence through the respect and deference that men give to long established habits.  Governments that lack the supporting power of Tradition struggle in maintaining their authority.  Such is the current situation in both Iraq and Haiti, or in any country whose government has not been long established.

Any government that allows the flaunting of its traditional authority will soon find that it has lost that authority.  Recently, judges have ignored the traditional deference of the judiciary to the legislature.  This has directly led to tyrannical decisions: For example, the Massachusetts Supreme Court legalizing same-sex marriage, despite vocal opposition from both the legislature and the populace.  The current action of the mayor of San Francisco has taken this disrespect of the traditional divisions of power to a new and more dangerous level.

The traditional Separations of Powers in American Government are of two kinds: Horizontal, and Vertical.  Horizontally, power is divided between the legislative, executive, and judicial branches.  Much has been written concerning the dangers of judicial tyranny, and I shall not duplicate it here.  The founding fathers were more concerned with the dangers of a tyranny by the executive, because the executive held control of the governmental instruments of Force: the police, and the army.  When the possibility of a judicial tyranny was raised, Madison dismissed it, arguing that if a judge dared to defy the will of the people, the people could just ignore him.

Authority in the United States is also divided vertically.  We operate under shared sovereignty.  The Federal Government has specific delegated powers.  According to the 10th Amendment, other powers are reserved for the States.  The Constitution establishes the supremacy of federal law over state law when the two are in conflict.  These divisions of power were established to provide checks and balances that protect us from tyrannical government.  The mayor of San Francisco has violated both horizontal and vertical separations of power.

California passed a law that prohibits same-sex marriage by the method of voter initiative, a democratic process that is recognized by the California Constitution as a legitimate method of creating law.  One man does not have the authority to repeal this law.  Not even the Governor of California has this authority.  The California Constitution does provide several methods to change this law.  A majority of the legislature with the approval of the governor, or a two-thirds majority of the legislature, may repeal this law.  These methods retain appropriate checks and balances.  California’s Supreme Court might also subject the law to judicial review.  Although doing so would continue to erode the tradition of judicial restraint, the California Supreme Court does hold authority over all of California.

Compare this with the mayor of San Francisco, who has no authority of any kind in this matter.  He was not elected by the voters of the entire state.  Yet he presumes to appoint himself dictator in deciding the definition of marriage for all of California.  Nay, if one listens to his statements, he wishes to define marriage for the entire country.  Municipalities can regulate commerce within their own city limits, states within their state boundaries, and the federal government regulates interstate commerce.  Can one imagine the chaos that would ensure if cities attempted to regulated commerce throughout the United States?  The Civil War was triggered by the Southern States insisting that they had authority to dictate to the federal government how to treat slavery in federal territories.

Furthermore the mayor of San Francisco belongs to the executive branch, not the legislature.  It has always been the legislative branch which has authority to make or repeal laws.  Executives have the authority to implement the laws which the legislature has approved, not to make new ones.  During the Civil War, President Lincoln’s emancipation proclamation was only effective in states that were rebelling, and derived its authority from the President’s war-making powers.  Freeing the slaves in other states required a Constitutional Amendment, approved by both Congress and the voters.  Despite the horrific evils of slavery, abolitionists did not circumvent established Constitutional methods of achieving political change.

The only accurate way of describing the mayor of San Francisco’s behavior is rebellion.  Those supporting him are supporting the rebellion of a self-appointed dictator.  I do not believe this is the intent of the mayor or his supporters, but that does not change the true nature of his actions.  Extend the mayor’s actions to their logical conclusions:  If a city mayor can determine who to issue marriage licenses to, why not driver’s licenses?  What if a mayor decides to ignore California law and issue driver’s licenses to illegal aliens?  Could a county poll worker decide to allow non-citizens to vote?  This is bigger than same-sex marriage.  At its heart, this issue is over authority.  Who has it?  If authority is not determined by Constitutional provisions, then what separates us from anarchy?  If the will of the people can be overturned by one, unelected, self-appointed man -- can we truly claim to be a democracy?

The mayor and his supporters make the claim of Moral Authority, drawing comparisons with the Civil Rights movement.  Even setting aside the incongruity of a group claiming Moral Authority while promoting approval of a lifestyle denounced by all major religions as immoral, the comparison is fallacious.  The Jim Crow laws in the South, and the behavior of her elected officials were in direct defiance of civil rights laws that had been on the books for over fifty years.  The Civil Rights movement was not only protesting immoral laws, they were protesting illegal laws.  The federal government had simply declined to exercise its power, and allowed the Southern Sates to usurp its authority, thus betraying the Black People, and the promise of Reconstruction.  The power of the Civil Rights movement was that it shamed the country into enforcing its own laws.

The Civil Rights movement did not circumvent established Constitutional methods of achieving political change.   However the gay rights movement has willingly circumvented democratic methods of change: First, by convincing courts to reinterpret civil rights laws prohibiting racial discrimination into laws prohibiting moral discrimination, and now by convincing executives to ignore their constitutional limitations.  Both of these methods ignore the will of the American public and dismiss democracy as being less important than “equality.” 

In addition, the sale of illegitimate marriage licenses is a form of fraud.  The city of San Francisco has reaped financial gain from the influx of same-sex couples purchasing marriage licenses that have no legal value.

If Tradition will not hold, Force must be used or a Government will lose all credibility.  The first check on rebellions like the mayor’s is the State Executive, who should zealously guard the supremacy of State authority over the city of San Francisco.  Just as President Eisenhower used the military to force Southern States to recognize the authority of the Supreme Court and the Federal government by integrating schools, Governor Schwarzenegger must force the mayor of San Francisco to recognize the authority of the people of California be whatever means necessary. 

Delay has only worsened the situation.  When a similar incident occurred in New Mexico, an immediate, sharp, verbal correction from the Governor was sufficient.  Though unlikely to be effective in California now, the same method should be attempted.  If, as is probable, the mayor of San Francisco ignores this warning, Governor Schwarzenegger should have him arrested for fraud.  I recommend this course rather then a direct confrontation over the mayor’s rebellion, because I believe it is less likely to inflame the passions of the factions in the debate over same-sex marriage, and thus more likely to lead to a peaceful conclusion.  I know that all good men must hesitate at the use of Force, but if the Governor does not act he invites a perception of powerlessness which will encourage similar rebellions by other groups promoting other agendas.  Every day the Governor does not act is a step closer to anarchy.

Daniel Oaks is a History teacher in Washington State with degrees in both History and Economics

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