When Wolves Go to Vote

In perfect time for the Eid, the Swiss voters passed a federal referendum today, which bans the construction of minarets throughout the country. If I understand the process correctly, then according to Swiss law any popular initiative is subject to the inspection of the Federal Council, which examines whether it is in breach of mandatory international law. If it is not, the initiative goes to public vote, and from that point on it cannot be struck down by any national institution based on its merit. The Swiss people, then, are an ultimate sovereign of Switzerland - their will is law, and it is not subjected to any constitutional restrictions.
There's a lot to say about this referendum. First, it is interesting to see how in so many instances democracy in it's most 'raw' form can be destructive to minority groups' rights. Much like California's Proposition 8 which banned gay marriage, the Swiss ban on minarets is a perfect example of the famous saying that "democracy is two wolves and a lamb voting on what to eat for lunch." If majority vote is all that counts, minorities are in extreme and constant danger of losing their rights every time they seem to contradict majority values or interests.
Another point is that this referendum doesn't even pretend to apply equally to everyone. It doesn't prohibit all constructions for religious purposes from exceeding a certain height, but targets only construction of one specific kind of religious architecture - the Muslim kind. Some might say that this is a good thing, since the referendum does not hide its purpose behind vague language. To cite another famous saying, "the law prohibits both rich and poor from sleeping under bridges. Surprisingly, only the poor are ever arrested for breaking that law." So according to this line of argument, at least this referendum did not use general language that "accidentally" applies only to Muslim structures, but made it very clear what it's targeting. That way, at least everyone knows what they are voting about.
Still, there's something discomforting about the fact that restrictions apply to one religious community and not to another. According to the official Federal Administration news portal, the supporters of the ban suggest that "[minaret] constructions symbolise a religious and political claim to power that calls into question the Federal Constitution and the Swiss system of law." Since Switzerland has no official religion, one can wonder why construction of massive churches does not provoke the same claim to power as minarets do. One might also suspect that a more generally applicable language was not used simply because any referendum that would sound like a restriction on the construction of churches would not have been as favorable in a country with a Christian majority. Either way, the posters supporting the ban make it perfectly and uncomfortably clear that this is not really an attempt to keep Switzerland secular, but an attempt to keep it clean of Muslim architecture. (Watch this report.)

Saying that this is an example of the need in restrictions on the power of the sovereign is true only if one thinks that the ban is unjust. Obviously, the sovereign cannot decide on everything, and some rights should be granted to everyone, regardless of public opinion. But the Swiss Council does narrow down the issues on which the public may vote according to binding international law. So the question this case poses isn't really whether majority vote should be restricted in certain cases, but what are the cases which majority vote should be restricted in. Answering this latter question (as oppose to the former one) depends a lot on one's point of view. In certain legal systems, such as the American one, the right for equality trumps the public's power to decide as it wills, and targeting one particular group (Muslims, in this case) as the sole subject of a referendum makes it unconstitutional. In Switzerland it doesn't.
It's easy to make a moral evaluation, and say that the American system is better, because equality is more important than the majority's will. But I don't know if a legal argument can be made to the same extent. By that I mean that it's hard to find something in the legal system itself (rather than in the evaluation of its results) that would explain why a majority shouldn't be able to decide every matter, as long as it does not breach international law. The claim that a law is unconstitutional requires a constitution by which the law can be measured. If the constitution allows any kind of referendum to be passed into law (again, as long as it is permitted by international law) there is no legal principle or binding document by which the referendum can be evaluated within the particular legal system.

So maybe this is just a lesson about the (almost) infinite power of legal regimes, as oppose to their limited moral validity. It might also be a chance to make an argument against referendums in general, since we would like our laws to follow our morals, and the public is usually not the best evaluator of moral considerations. Of course, morals are debatable and maybe not one set of morals should run through the entire legal system. But that's why we need a parliament, full of legislators that feel they need to satisfy a constituency they know very little of, and to represent what they believe is its opinions and believes. This imaginative voter, as limited as it is, turns out to be much more moral than the actual one.

Transracial

Back in the beginning of the 20th century, many of the United State's Southern countries adopted some kind or another of the 'one drop' rule, determining that any person with any kind of African ancestry - 'one drop of black blood' - is black. I guess that made sense for those who tried to keep the white race 'pure'. But surprisingly enough, the same rule - although long abolished from the law - is still used as a determining test by those today who try to define what 'black' is, even (and perhaps most prominently) by those who consider themselves to be black.
It's interesting, because 'black' is a completely socially invented classification. I mean, if 'black' would have referred to dissent, as does 'African American', I'd assume that in a non-racist world one would have been referred to as what one is, or at least as what one is more. That is, a person with one African American grate-grandparent and seven European grate-grandparents should be referred to as 'bi-racial', since that person is of 'mixed dissent'. And indeed the term 'bi-racial' does exists, but no one really uses it, nor does society refer to such a person as 'white' either. Bi-racial people are 'black' even when they have more 'white blood' running through their veins. (and watch Wanda sykes's comments on President Obama's race at the 2009 White House Correspondents' Dinner.)
So 'black' isn't really about genes or ancestry. It's really much more about life experience, social background, and self-identification. If taking President Obama as an example once again, he writes in his book, Dreams from My Father, that he adopted the African American identity (meaning, the 'black' identity) only as a young adult, after encountering racism and deepening his knowledge of the story of slavery and emancipation in the United States. Thinking about it, Obama isn't 'black' at all in the regular sense of the word. His mother is 'white' and his father was an African student living in the United States. None of his ancestors were brought to America by slave owners, or lived through decades of discrimination. He is partly of African dissent; and he's American; but he chose to adopt the 'black' identity.
So can anyone adopt a 'black' identity? Of course, this is a question about all kinds of racial identities., and not just the 'black' one. Can someone opt-out of his or her race? The first answer that comes to mind might connect racial identity with the color of your skin. Well, Michael Jackson took care of that, didn't he? Did that make him 'white'? Is it just a matter of a simple operation and, much like transexuals, the question of racial identification can be solved on the slab?
Honestly, I think the answer is no, but only because I don't think it should be left to medicine to determine who and what we are. A few years back, legal and social discourse made the clear distinction between 'sex' and 'gender'. Sex is what reproduction organs you have; gender is who you feel that you are. Maybe the same distinction should be made with regards to 'dissent' and 'race'. My dissent is determined by my parents dissent, and their parents' before them. Nothing can change that. But my race? Completely up to me, to the social story I identify with, and to my choices in life. Personally, this is why I never tick the box next to 'caucasian' when asked for my race. I feel much more like an 'other'.

The Rock It Cannot Lift

In his book, "The Concept of Law", H.L.A. Hart asks if a legislative body can bind itself and its successors by transferring legislative powers over specific issues to a new and different body:

"[I]t might be conceded that Parliament might irrevocably alter the present constitution of Parliament by abolishing the House of Lords altogether... It might also be concede, as Dicey says, that Parliament could destroy itself totally, by an Act declaring its powers at an end and repealing the legislation providing for the election of future Parliaments. If so, Parliament might validly accompany this legislative suicide by an Act transferring all its powers to some other body, say the Manchester Corporation. If it can do this, cannot it effectually do something less? Can it not put an end to its powers to legislate on certain matters and transfer these to a new composite entity which includes itself and some further body?... It is quite possible that some of the questionable propositions... will one day be endorsed or rejected by a court called on to decide the matter." (pp. 151-152)

Yesterday, the Supreme Court of Israel decided on a strikingly similar matter. In a case questioning the constitutionality of an amendment to the law that made it possible for the state to privatize its prisons, the Court ruled such transfer of authority to be unconstitutional. The State, according to the Supreme Court, not only has the right to use hold a person prisoner if he or she committed a crime, it also has the duty to execute that right by itself and not delegate it to others. In what is pretty much an international precedent, the Court ruled that, with regards to certain issues, the government is incapable of stripping itself of its powers and transfer them to others, since no other body but the state itself is capable of balancing the proper interests of state and the individual.

It's easy to think of this ruling as dealing with human rights of prisoners, as even some of the Justices do. But I think the real question that was answered here is not 'what are the prisoner's rights?', but, rather, 'what is a state?'. So far, constitutions restricted governments only in what they are allowed to take or deprive their citizens. This, however, is an unprecedented decision about what the government must provide. While constitutional law was thus far focused on keeping governments small, this decision is focused on making sure the government won't grow too small. The truth is, that - as Justice Levi writes in his dissenting opinion - conditions in state prisons are sometimes so bad that prisoners might be better of in private hands. Nonetheless, the court decided that the government simply doesn't have the power to give away some of its powers to others.

Much like in the question whether an almighty god can create a rock he himself cannot lift, the Israeli Supreme Court was faced with the question which kinds of rocks can the parliament create. Yesterday it decided that there's a new kind of rocks that are has to be left on the ground.


Here is the Court's ruling (Hebrew) and a brief report (Hebrew and English).