Peter Schrag
For nearly a decade, California Chief Justice Ron George has been increasingly vocal in his criticism of the state’s initiative process. At a conference at Stanford on state constitutions recently, he leveled what was probably his fiercest attack.
The initiative, he said, had placed the state and its lawmakers “in a fiscal straitjacket.” Often funded by deep-pockets interest groups that are the only entities with the resources to pay for the multimillion-dollar signature gathering campaigns required for qualifying a measure for the ballot, initiatives “have rendered state government dysfunctional.”
What he didn’t say is that the court itself has been sharply constrained – and sometimes intimidated – by ballot box populism.
George also pointed to the ease with which the state constitution can be amended. Former U.S. Supreme Court Justice Hugo Black could slip the slim text of the federal Constitution into his pocket. That’s impossible with the California Constitution, which has been amended 500 times and is now 65,000 words long.
During the same election in 2008 that voters passed Proposition 8, overturning his court’s constitutional interpretation allowing gay couples to marry, George said, they also passed an amendment regulating the confinement of chickens. Thus “chickens gained valuable rights in California on the same day that gay men and lesbians lost them.”
Little of such criticism is new. It’s been made for decades by others. Neither was his reminder that California is the only state in the nation that, after a certain period of time, doesn’t allow legislative repeal or amendment of voter-approved initiatives. He was hardly the first to ask whether the initiative has “now become the tool of the very types of special interests it was intended to control, and an effective impediment to the effective functioning of a true democratic process.”
But he left out one obvious culprit: the California Supreme Court over which he presides. At least since 1978, when it upheld Proposition 13, the justices have ignored constitutional provisions requiring that voter initiatives be limited to amending, not revising, the state constitution.
If any measure was a revision, it was Proposition 13 which radically shifted authority from local governments to the state, changed majority control in the Legislature (on crucial matters like taxation) to supermajority rule and eviscerated home rule.
The same could be said for legislative term limits, which severely abridged the rights of voters to choose their representatives, and Proposition 8, which infringed on the rights of Californians on the basis of gender preference. On the gay marriage amendment, George, who in May 2008 had led the court in establishing a constitutional right to marriage, also wrote for the court’s 6-1 majority a year later in upholding the constitutionality of Proposition 8, which eliminated that right.
It’s understandable that the justices, who are subject to periodic reconfirmation and to recall, would be skittish about running afoul of voter backlash. Former state Supreme Court Justice Otto Kaus observed many years ago that ruling on any hot button issue was like shaving with a crocodile in the bathtub. Try as you might, it’s hard to ignore.
But maybe in the course of George’s welcome ex-cathedra remarks, that dark fact and its distortion of constitutional government should at least be acknowledged. George has long recognized, as he did again at Stanford the other day, that the accumulation of initiatives, many of them poorly drafted and lacking any reliable legislative history, confound the work of the court.
In 2000, the court struck down a ballot measure on the grounds that it violated the constitution’s rule against initiatives covering more than a single subject. In what seemed to be a warning, the court said that the rule was “neither devoid of content nor as ‘toothless’ as some legal commentaries have suggested.” And it indicated that it might begin to subject the rule against revising the constitution by initiative to a broader interpretation as well.
But it has not happened, either with Proposition 8, which could have been read as a “revision” of the constitution’s equal protection provisions – in effect, the court more or less said that it followed the election returns – or with any anything else approved by the voters in recent decades.
In his Stanford talk, George strongly urged reform of the process. “If we fail to undertake such reform,” he said, “I am concerned we shall continue on a course of dysfunctional state government, characterized by a lack of accountability on the part of our officeholders as well as the voting public.” It’s good to hear him say it, but unless the court begins to say it as well, too few people may ever hear him.