Achieving Equal Treatment through the Ballot Box

By Connerly, Ward | Harvard Journal of Law & Public Policy, Winter 2009 | Go to article overview

Achieving Equal Treatment through the Ballot Box


Connerly, Ward, Harvard Journal of Law & Public Policy


Since the founding of the United States, the relationship between the citizens and their government has been central to the definition of our nation. We were established as a nation of individuals who rely on certain "self-evident truths" (1) to guide how we conduct our official business. Personal liberty, maximum individual freedom, and a God-given endowment of equality form the centerpiece of our system. (2) These gifts from our Creator are inalienable--they cannot be detached from us as individuals--and the government must operate within a framework that acknowledges and protects the supremacy of these individual rights. (3)

The proposition that the best form of government is that which is closest to the people is central to the relationship between the government and its citizens. There is no form of government that is closer to the people than direct democracy, namely citizens governing themselves by way of such measures as citizen-sponsored initiatives. Sometimes direct democracy is crucial to protecting individual freedoms in the face of abuses perpetrated by representative democracy.

Every generation has to evaluate and redefine the relationship between its citizens and their government. The relationship is never etched in stone. Events and demands of our times always intrude to force the relationship in one direction or another. Today, we confront terrorist activity and the response of our government to that activity, we confront the issues of race, sex, and ethnic preferences, and we deal with a host of other issues. Generally, circumstances encourage expanded power to the government. Rarely is the citizen on the receiving end of expanded rights and personal freedom.

Sometimes, the government receives expanded authority as a result of the direct consent of the governed. More often, however, that consent comes by quiet acquiescence. The relationship may also be altered in subtle ways on an incremental basis. Take, for example, the Civil Rights Movement of the 1960s. Initially, the 1964 Civil Rights Act (4) was enacted to extend to black Americans their right to equal treatment. (5) In this instance, the grant of equal rights to black people did not affect the rights of other citizens.

This extension of basic rights to blacks also did not initially affect the relationship between private citizens and the government. Over time, however, the government approved additional legislation designed to benefit blacks, other minorities, and women beyond the level of equal treatment. (6) Each new enactment reduced not only the rights of non-minorities and males, but also increased the power of the government to make decisions about such matters as diversity. (7) In so doing, this legislation treated the question of the relationship between the private citizen and government as secondary to the more specific issue of race and gender preferences and their effect on respective groups. It is undeniable that these incremental initiatives reordered the basic relationship between citizens and the government.

At other times, cataclysmic events occurred and substantial reforms were put in place to address such events. We need look no further than September 11, 2001, to find such an event. In response to those attacks, the U.S. government deemed draconian security measures essential to protect the people. (8) The passage and enforcement of such measures instantly, substantially, and perhaps irrevocably achieved a major restructuring of the relationship between private citizens and the government. (9)

Although few can deny the legitimacy of the rationale for greater governmental power to protect the security of our nation, the result is an unmistakable expansion of the government and a severe diminution in the rights of the citizen. Witness the intrusive, although understandable, inspections of persons and property at airports. (10)

The great challenge of a democracy is determining how to reconcile issues that threaten to diminish the role of the citizen with solutions that would have the effect of embellishing the role of the government. …

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