April 7, 2006

What do the war referenda mean?

It depends on how voters interpreted the question. Does "now" mean now?
Some voters certainly took the question of getting out now quite literally.

This means some voters who despise the war nonetheless may have voted against the referendum because they fear a hasty exit could cause an even greater calamity in Iraq and the Middle East.

Other voters no doubt saw the referendums as a vehicle for expressing their dissatisfaction with how the war is going. The message from their "yes" votes wasn't "get out" so much as it was "get better."

Still others may have viewed the vote as a referendum on an unpopular president. Given George Bush's poll numbers lately, it's easy to see how "yes" votes could have been boosted.
What a ridiculous exercise to subject us to! How about speculating about what the failure to vote meant? Uh, could you rephrase the question?

Fortunately, the war referenda have no effect. They were only a way to express opinion (inarticulately). Next fall, we're asked to vote on a statewide referendum to express something about gay marriage. The language in that referendum is also confusing, and it's not just an opportunity to blow off steam. It's language to be inserted into the state constitution.

10 comments:

Simon said...

"Next fall, we're asked to vote on a statewide referendum to express something about gay marriage. The language in that referendum is also confusing, and it's . . . language to be inserted into the state constitution."

Is the language of the referendum going to be different to the bill passed by the Wisconsin legislature? I would have thought that the language agreed to by the populous would have to be that submitted to it by the legislature, and while I can certainly buy that the bill (SJR 53) (PDF warning) is disagreeable, I'm not sure to what extent it could be described as confusing.

The question SJR 53 will put to the voters is this:
"Shall section 13 of article XIII of the constitution be created to provide that only a marriage between one man and one woman shall be valid or recognized as a marriage in this state and that a legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state?"

I really don't see how that could be any clearer. What in that language is "confusing"?

MadisonMan said...

a legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state?"

This is the confusing part. What does it mean? If two unmarried people (same sex, different sex, whatever) have a legal contract for something -- oh, business matters, hospital visits -- that is just the same as what is provided for married couples, is it still valid after this amendment passes? Can unmarried domestic partners still get health insurance from their spouse's employer?

I am uncomfortable to be put in a position to deny that. (Quite apart from my discomfort at the blatant insertion of rights-withdrawal into a Constitution that should be all about granting rights).

Simon said...

I really don't see how that's confusing. It simply says that a future legislature can't bypass §13 by creating civil unions, or some legal marriage by some other name. The extent that it applies to out-of-staters will depend on the scope of the U.S. Constitution's full faith and credit clause, not any provision of this law. Now, banning civil unions in the absence of actual marriage may well give rise to unforeseen consequences (that is, this bans civil unions, period), but it's hardly confusing. Its purpose seems entirely self-evident.


"I am uncomfortable to be put in a position to deny that. (Quite apart from my discomfort at the blatant insertion of rights-withdrawal into a Constitution that should be all about granting rights)."

Constitutions don't grant rights; rights spring ex deo, not from legal documents ("they are endowed by their creator with certain inalienable rights"). What a constitution does is prevent a government from taking rights away in certain circumstances; thus, the Fifth and Sixth Amendment prevents the government from doing what it's done to Padilla, which is to say, it removes from the majority the right to say Padilla should be imprisoned without charge, and protect's Padilla's right not to be. It does not, however, create that right. The mere act of having a constitution removes rights from a majority (more properly, by acceding to a constitution, the majority cedes certain group rights to protect certain individual rights). Now, that doesn't mean that I disagree with you that Constitutions shouldn't be used to limit personal freedom.

MadisonMan said...

Now, banning civil unions in the absence of actual marriage may well give rise to unforeseen consequences (that is, this bans civil unions, period), but it's hardly confusing.

Even if the language in the referendum is crystal clear, it is marketed to obfuscate the outcome. Therein lies the confusion.

Simon said...

What do you mean "marketed"? Are you yielding that the language in the referendum is crystal clear but saying politicians and newspapers are obscuring that crystal clear language in their speeches and reporting?

I don't understand your comment. The bill either is, or is not, clear; when the text is easily available and will be in front of the voters when they make their decision, how it is "marketed" seems irrelevant. If this were some lengthy statute we were talking about - last year's bankrupcy bill, for example - then misrepresentation might be an issue, but the idea that one could misrepresent a bill that is couched in a whopping 59 words seems to express a very dim view of the ability of voters to actually read.

MadisonMan said...

I thought I replied, but blogger seems to have eaten it.

The referendum is universally referred to as one that bans gay marriage. The fact that is would do much more than that is not mentioned.

You raise an interesting question -- a good exit poll question would be: what is the wording of the referendum on which you just voted? Do people actually read the referenda they vote on? I don't know.

Doris said...

Professor Althouse, I think you might add to the confusion by saying we're voting on "gay marriage," which could lead folks to vote the wrong way and doesn't account for the second sentence. It seems to me that "constitutional ban on civil unions and marriage," while clunky, at least somewhat more accurately describes exactly what we'll be voting on.

Thanks for your continued attention to the issue.

FXKLM said...

Let's have another referendum to ask people what they thought the first referendum meant.

Ehud Blade said...

Simon wrote:

"Constitutions don't grant rights; rights spring ex deo, not from legal documents ("they are endowed by their creator with certain inalienable rights"). What a constitution does is prevent a government from taking rights away in certain circumstances ..

I'll bite. I wasn't aware that prolegomena from the Declaration of Independence had been incorporated by reference in Constitutional case law, settling the matter that our rights spring ex deo.

While Aquinas and Grotius might beautifically nod approval, I'm wondering if even Scalia might repeat his recent Sicilian gesture from the bench, not just in church, at such a notion?

I think it was Wittgenstein who was similarly offended by an interlocutor who made the same gesture at him, apparently punctuating with this gesture an illustration of what Wittgenstein felt could not resolved by words, that is, when words lapse into silence. To wit, it's silence, methinks, that's the case on American rights ex deo, unless God shows up and takes the dock to defend/offend gay marriage.

I'd like to see, however, Scalia's next gesture if the Almighty should show up and take the dock in defense of gay marriage.

I mean, what a show it'd be to find out that Scalia's supplications really chaff the Almighty' holy butt.

A prophetic event that would make even the most gayfully joyous Anglicans wish to sip some communion cherry with the most Augustinian of Catholics.

If not get downright, drunk.

Alex Elliott said...

I really don't see how that could be any clearer. What in that language is "confusing"?

The phrase "substantially similar" is pretty darn vague, and will certainly require court cases to draw the line between "not quite substantial" and "just substantial enough".

In other states where very similar amendments have passed, it's had the effect of ending domestic partnership medical benefits for state government employees (in Michigan) and voiding laws against domestic abuse by a live-in boyfriend (in Ohio). Where will Wisconsin's courts draw the line?