Rock, Paper, Scissors Redux: Proposition 8
Paul GoodellLast September I wrote about the curious ubiquity of rock, paper, scissors as a means to legitimately resolve conflict among kids and adults here in South Korea. As I noted, Koreans use rock, paper, scissors as a way to decide all kinds of issues, from the trivial (in what order students will play a classroom game) to the slightly meaningful (who will get a disputed parking spot) to the more meaningful (how a person will spend his weekends over a two-year period). My fellow teachers and I appreciate how unfailingly the winners and losers of rock, paper, scissors abide by the results of the contest. We would love it if we could settle disputes in the same way in the US, but we all understand a very sad truth about contemporary America:
Rock, paper, scissors would never work there.
People familiar with my original essay know that I compared the legitimacy that rock, paper, scissors enjoys here in Korea (as a known, transparent method of decision-making with agreed-upon rules, the results of which everyone involved agrees to abide by, win or lose) with democracy in America (which, theoretically, shares the same characteristics). We use democracy to resolve major disputes in America. If we want to make changes in our societies, we can vote (either directly or through our legislators) to make them. Our national and state constitutions even allow us to amend them (if we have enough votes) in order to make the social changes we want to see more lasting.
Unfortunately, as I noted in my previous essay, over the past 40 years, we have become less and less accustomed to making major social changes through democracy. Instead, we’ve become increasingly accustomed to using force — judicial force (which involves a handful of unelected judges effectively amending state or national constitutions without anyone’s consent), and social or physical intimidation — to make them. More and more, we want the changes we want to see in society made NOW. We’re no longer willing to wait to achieve, or to accept failure in our attempts to achieve, them.
Which brings me to Proposition 8.
On November 4, 2008 over 52% of voters in California approved Proposition 8, a ballot provision to amend the state constitution so that “only marriage between a man and a woman is valid or recognized in California.” Proposition 8 was a response to the California Supreme Court’s May, 2008 decision legalizing same-sex marriage in that state. The campaign over Prop. 8 was intense and emotional, and the opposition especially was often vitriolic in its denunciation of the ballot measure and its supporters. That vitriol has extended past the election. Even though Prop. 8 opponents failed in their (well-funded) efforts to convince their fellow citizens to support their cause — and even though some of them admit that there’s good reason to believe that the size of the opposition vote significantly overstated support for same-sex marriage in California — Prop. 8 opponents have been largely unwilling to accept the legitimacy of their fellow citizens’ refusal to support them.
This is an example of why my fellow foreign teachers and I don’t think rock, paper, scissors would work in contemporary America. We wouldn’t keep our promise to abide by the results if we lost (which we’d implicitly make by the act of participating in the game). We often no longer accept that we can’t get our way. (Witness, for example, the way we’ve unscrupulously borrowed trillions of dollars from future generations over the past few months to continue to fund our unsustainable lifestyles.) The anti-Prop. 8 movement has exemplified this, quite frankly, contemptible side of contemporary America in its attempts to punish Prop. 8 supporters for their political and religious views by blacklisting and physically intimidating them or by judging them in Stalinist show trials.
A well-functioning democracy needs people who will not tolerate the behavior exhibited by many of the opponents of Proposition 8. Such behavior is better suited to tyrannies, banana republics, or emerging democracies where people don’t trust democratic processes and remain loyal to their tribes or family groups at all costs. It does not belong in America.
A little over 200 years ago, Thomas Jefferson and John Adams ran against each other for the Presidency in a campaign so vitriolic and personal that it made the opposition to Prop. 8 look friendly by comparison. Yet after the election was over, John Adams and the Federalists accepted their loss and stepped aside in favor of Jefferson and the Democratic-Republicans in the first peaceful transfer of power between opposition parties in recorded history. While the French Revolution had devolved into tyranny and dictatorship and Napoleon was still trying to conquer Europe, the election of 1800 showed the world that democracy really could work. Now is not the time, 52 Presidential elections later, to let any group impatient with, or unwilling to accept, legitimate democratic change to rob us of the privilege of ruling ourselves in a free society.

December 5th, 2008 at 10:57 am
What a thoughtful, well-stated, and timely essay.
Opponents of guns, of abortion restrictions, and of a host of other issues turn to courts as a matter of first recourse–not to decide specific, discrete disputes, which is the courts’ proper role, but to make policy. Unfortunately, as the strategy originated with the NAACP and culminated in Brown v. Board, it enjoys a false moral legitimacy.
What this approach is in fact–along with the Prop 8 incidents noted by Paul, and even the seemingly trivial demands by Obama supporters that President Bush abdicate the office of the presidency early–is evidence of the dwindling truth of the proposition that lies at the core of democracy that if everyone agrees to the rules of the game, everyone will abide by the outcome. I believe, as Paul, that what we are seeing is a sign of rot and decay in one of the social artifacts that makes American democracy possible.
December 5th, 2008 at 1:42 pm
Excellent essay, Paul. It had real flow and progression, readability, and I made it to the end without having to get out my dictionary! BRAVO!
December 5th, 2008 at 10:41 pm
They constantly try to escape
From the darkness outside and within
By dreaming of systems so perfect that no one will need to be good.
But the man that is shall shadow
The man that pretends to be.
-T. S. Eliot
If we cannot abide by even the rules we create for ourselves… we pine for rules to be created over us, that cater to our carnality.
With the advent of birth control, Americans lost their self-control. I.e. they lost their capacity to govern their own fertility. When you’ve depended on the condom instead of on your self-control, and have thereby temporarily abdicated your self-control- and then the condom fails on you… what you have left, is a state of servile fear and desperation in which the power of the state replaces technological failure. The state is then sought for its legal approval of, and financial/clinical responsibility for, the (fatal) consequences of the abdication of self-rule and self-control.
In the case of gay marriage, self-control is still abdicated, and children are still the victims. But in this case, the self-control is inverted: it lies in merely the homosexual’s acceptance that gay marriage is not procreative by nature-it does not serve posterity-and thus, the state has little natural reason to support it. That is, unless the state becomes a mother: a guarantor of baby-rights to the intrinsically infertile, who haven’t enough to self-control to acknowledge natural law in civic life.
December 13th, 2008 at 4:44 am
This begs the question, though: does democracy have any more legitimacy than court fiat?
The forces of reason are at legislative war with far more well-funded special interest groups, a largely issue-ignorant american public, a self-insulated government machine, and little regard for the Constitution that is supposed to protect against this. Rock, paper, scissors is at least random; the American experience with democracy is hardly so.
Persuasion followed by peaceful arbitration would be the best of all, I think. But given the choice between Korean randomness and American democracy, I think Korea is a head above.
December 13th, 2008 at 12:57 pm
The annual Rock, Paper, Scissors world competition (held in Japan, I believe) seems to cast doubt on your assertion that that game is random. There is strategy behind it (although I think anyone with a semblance of a life doesn’t have the time to figure it out).
I don’t see how my article begs the question. Unless you’re coming at this discussion from a completely different frame of reference, “legitimacy” means “democratic legitimacy.” Centuries ago “legitimacy” might have meant the mandate of Heaven, or some divine right to rule. In the West, however, it no longer has that meaning, and hasn’t for several generations. Court fiats by definition are less legitimate than decisions arrived at by non-coercive democratic means.
December 14th, 2008 at 1:45 am
I only mean to point out that when 50.1% of a population vote to do something without the consent of the 49.9%, and the 49.9% never granted any authority to the 50.1% to do so, then I’m not sure how one could argue that this is any more of a legitimate authority than, say, a dictator’s fiat.
That is to say, we often put the words “democratic” and “legitimate” in the same bed together. Perhaps that’s inappropriate. Two wolves and a lamb voting on what’s for dinner is not legitimate authority.
December 16th, 2008 at 9:30 am
Well, this was why the Founders gave us a republic, wasn’t it? Our society has become more democratic over time. That may or may not mean it has become more legitimate (although, as I noted Dude, “legitimate” in the parlance of our times means “democratically legitimate”). In the debates and discussions about Constitutional ratification, though Madison explicitly singled out a tyranny of the majority as the worst sort of tyranny imaginable. A dictator can die, or he can be killed or overthrown. How do you overthrow 50.1% of the population? (Well, if you’re Robespierre or Castro or Lenin, you just kill them, I guess.)
That being said, democracy is the best way people have come up with for making binding decisions in a society. If there’s a better way out there, no one’s thought of it yet. Done correctly, it has all the advantages of Rock, Paper, Scissors: it’s an open contest with known rules that anyone can conceivably win if they play the game well. Done incorrectly, it can degenerate into mob rule. That’s why the Founders stressed the importance of people’s moral fiber in preserving legitimate government.
December 20th, 2008 at 9:22 pm
If we did rock, paper, scissors, we’d still have separate schools for blacks and whites and 9/11 would have occurred on Al Gore’s watch.
December 22nd, 2008 at 12:32 am
Perhaps you’re right, Keith. I’m having trouble seeing the point to your statement, however.
Considering how profoundly George W. Bush has mismanaged foreign policy and security policy over the past 8 years, I’m having a tough time thinking of other ways Gore could have screwed up after 9/11. (Maybe he could have needlessly invaded a country that wasn’t a threat to American interests to ensure that the American military’s capabilities and moral were perpetually strained to the breaking point? Or he could have gone out of his way to offend major potential allies in order to foster corrupt “democracies” in tiny nations with such negative population growth that they won’t exist in 50 years? Oh, wait.) But that’s not the point. If American citizens legitimately chose Gore as President, why would it be wrong for him to be the President?
Also, there’s no way to know what would have happened to Jim Crow had cases like Brown v. Board not tipped the scales of society against it. Democracy is supposed to work by citizens using reason to persuade their fellows to support their position. If enough citizens became convinced that Jim Crow was morally wrong, what would stop them from legitimately changing the laws to end it? It would probably have taken longer, but it wouldn’t have given us the impatiently litigious social change mindset so many of us have today.
December 22nd, 2008 at 11:50 am
In fact, I would contend rock, paper, scissors DID hand us George Bush’s presidency, to the extent that Bush v Gore was decided by what mood Anthony Kennedy was in that day.
December 23rd, 2008 at 10:53 am
Cute, Tom. Completely wrong, but cute. The whole point of the argument here is the Rock, Paper, Scissors as a decision-making mechanism is nearly the opposite of Justice Kennedy swaying major decisions based on his whims that day.
The core issue involved in Bush v. Gore was whether the Dade County (I believe it was Dade) vote counting regime — and FL Supreme Court ruling sanctioning it — violated the Constitution. The vote there wasn’t close: 7-2 saying that it did. Given that it did violate the Constitution (by encouraging clearly arbitrary vote-counting standards, thereby denying the Equal Protection Clause, and not in the meaningless and fictional “substantive due process” sense, but in the real process-oriented sense), why should it have been allowed to continue? Bush v. Gore should never have happened. It’s important to remember, however — in light of how monumentally terrible the Bush presidency has been — that the Bush campaign weren’t the ones who made the 2000 election a legal issue.
December 23rd, 2008 at 11:38 am
You are right about Rock, paper, scissors being a more crude decision making mechanism. Back to our tangent.
You are wrong about the 7-2 decision settling the case. The real decision was the 5-4 ruling that a statewide recount that met the Constitutional litmus test of the 7-2 ruling wasn’t possible by the federal deadline.
First of all, what’s the crime in letting Florida try a statewide recount? You have certifiable results if it doesn’t happen in time. Second, though, and more important, the US Constitution says specifically that Florida’s electors are to be selected by Florida’s state legislators (it just so happens that every state passes the buck to a popular election). While the Constitution does require Florida to send electors to the electoral college, nothing stops Florida’s legislature to punt on the popular vote and choose their own electors via any method they like.
Why is this important? As long as Florida has some set of electors chosen by the federal deadline — even by the state legislature instead of the voter — it really doesn’t matter what the results of the recount would have been.
December 26th, 2008 at 11:47 pm
I could be wrong, but I don’t believe it was a state-wide recount. I think it was just the disputed counties. Part of the reason for the outrage (in the Supreme Court and the court of public opinion) against the recount was that the standards for the recount were so arbitrary from county to county.
The Constitution requires Florida to choose electors (however they decide to do that), this is true. Florida had chosen to do so by “passing the buck” to the people, however. That is, the rules of the game were that the people effectively chose the President for Florida. I don’t see how a state legislature’s decision to choose a candidate different from the one chosen by popular vote — when the state’s election protocol require the state legislature to certify the popular choice — is in any way keeping with the Rock, Paper, Scissors method of government.
I can’t comment on the propriety of the Supreme Court ruling on how Florida should handle its state election rules (although it seems to my legally unschooled mind that it’s improper). It doesn’t seem, however, given the way the Florida legislature had bound itself to rubber stamp the popular vote, for the Supreme Court to operate under the assumption that the legislature would keep its own promise. That seems to have been the assumption upon which Bush v. Gore was predicated. How is that improper?
April 2nd, 2009 at 10:58 am
“Judical force.” Much better that Inquistion…
April 2nd, 2009 at 1:13 pm
Heh. Funny. One could also say, “Gangrene — much better than Ebola.” As with the example you quoted, Pat, that says less about the latter (Inquisition) than about the former (judicial force).