And Now, A Discussion of Constitutional Import

Today’s discussions on state constitutional amendments reminds me that one of the things that frustrates me is that so many state constitutions — i.e., so many foundational documents of state legal systems — are so easily amended. One of the great strengths of the US Constitution to my mind is that it’s so difficult to amend: Amendments have to jump over two sets of very high bars, first on the national and then on the state levels, in order to be encoded into the Constitution. Whereas in California and other states (such as Ohio, where I am), a simple majority of voters can amend the state constitution.

So, for open discussion:

Proposed:

1. State constitutions should have a similar bar to amendment as the US Constitution; e.g., a state constitutional amendment should require a two-thirds approval of the state legislature, plus a two-thirds approval of the voting public.

2. All state constitutions currently extant should be tabled and replaced with constitutions that provide only for the mechanics of governance (i.e., definition of executive, judicial and legislative branches and the election of each), onto which amendments may be added per point one.

Discuss.

66 thoughts on “And Now, A Discussion of Constitutional Import

  1. Entirely reasonable. California’s amendment-by-initiative system has caused them a *lot* of pain during the last thirty years or so.

  2. Absolutely agree on #1, #2 is a bad idea because it would eliminate states’ equivalents of the Bill of Rights.

    On the other hand, it would provide endless employment for many of my colleagues….

  3. Absolutely.

    What’s the point in even having a constitution if it’s that huge and cluttered, and that easy to modify? You may as well have a system of law based entirely on statute and precedent.

  4. A terrible idea. As it is now, amending my state’s constitution (florida) is the only way that I have to directly effect law in the state. If this was not possible I would have to rely entirely on the opinions and moods of someone that was elected years ago, and may not necessarily have the same opinions that the vast majority of the people they represent.

    Imagine if you will that I voted for someone that was primarily a pro choice atheist who also happened to be married into the local petroleum lobby. I might vote for them on the choice/religion issue, but disagree with them on offshore drilling. Should I just take that lump or should I be able to force a law that says no to off shore drilling?

  5. The problem is that attempting to declare such a rule on the federal level would (rightly) be seen as a major power grab by the federal government. Given that we’re currently seeing an all-time-low for confidence in the federal government, it looks like a non-starter to me. And it’s worth noting that there’s already a fundamental limitation on state constitutions, which is that the Federal Constitution takes precedence!

    Also, that division between federal and state governance, with different rules for each, is one of the strengths of our system — notice that we’ve had major changes in national law going both ways — some started from state initiatives that accumulated to where the federal government had to take notice, (often because of interstate trade issues). But some started (and had to start) from federal initiatives that eventually brought the states more-or-less into line. Both ways have included major errors (i.e., Prohibition, NAFTA), but also major advances.

  6. Here in a Massachusetts an amendment must pass both houses of the legislature in two consecutive sessions before it can be placed on the ballot. That’s why our state actually has relatively few constitutional amendments compared to other states.

    When the state supreme court ruled same sex marriage was constitutional, anti same sex marriage advocates had to try to persuade the legislature to pass a ballot measure. They couldn’t do by simple ballot initiative. And they failed because our state legislature is filled with progressive legislators who had zero desire to take away this right.

  7. I think 1. is a good idea, but a bad law (the latter for reasons outlined by others). I think 2. is a bad idea, because some states (New Jersey, for example) have rights written in that the federal one doesn’t, and that are valuable.

    It would be nice if states would adopt 1. voluntarily, but there’s no way to impose it from without without opening a truly nightmarish can of worms.

  8. I’m certainly for a high bar to amending the constitution, but state constitutions are generally (and I assume even universally) far more detailed than those of the federal constitution and, importantly, are designed to address those things that the federal constitution was specifically designed NOT to address. The US Constitution is brilliant precisely because it is so limited, but that’s brilliant because it takes into account a federal system where states address more specifics: education, resources, taxation and the like.

    More importantly, because states have the police power (i.e., a general right to police public health, morals, and the like) — something which the federal government does not have — state constitutions have to provide for affirmative protection against that blanket power. Most states have a specific protection of gun rights (California, sadly, not among them), rules on taxation, and the like. But since the police power is inherent at the state level, removing the state constitutional mechanisms to protect rights (and to amend the constitution to protect new rights (or, sadly, kill now-existing ones)) really leaves folks at the whim of state government more than you might expect.

  9. (oops, that last sentence should read “leaves folks at the whim of the state legislature more than you might expect.”)

  10. Sean F:

    Well, it could be done by amendment to the US Constitution as well, although I suspect you’d have a hard time convincing any state legislatures to sign on.

  11. Agreed that many states set the bar too low; but I don’t think it should be *as* difficult to amend state Constitutions as it is for the US Constitution. I subscribe to the ‘laboratories of democracy’ view of state government, and there should be room to experiment. If things go wrong, fewer people are affected compared to the federal level; and the right to vote with your feet is always there as a last resort.

  12. As David said, it would be a Federal power grab. And an unconstitutional one, since I’m pretty sure the gist of the Tenth Amendment would be that States can govern themselves as they see fit (post-1880s, that generality is modified by the Civil War Amendments, XIII, XIV and XV).

    It also would fly in the face of our federal traditions, since one of the main rationales for our system of split governance is that the individual states function as “laboratories of democracy,” or at least that’s the idea. In terms of theory, as ugly as it is, states like Ohio and California should be able to try out whichever laws suit them, and those that succeed might be adopted by other states or the federal government as it suits them and amended out of existence when they fail. (It should be noted that by “laws” we don’t merely mean the statutes, but the various constitutions, which are the first laws, so to speak, of the state.)

    This is a situation where I’m obliged to defend how the sausage is made and not the sausage: I don’t like states using their constitutions to validate homophobia and religious bigotry, and from a results point of view restricting constitutional change might be a reasonable way to keep the states from doing so. But it would also scrap one of the cornerstone principles of our republic, which is that the states are largely self-governing.

  13. The Pathetic Earthling:

    “state constitutions are generally (and I assume even universally) far more detailed than those of the federal constitution and, importantly, are designed to address those things that the federal constitution was specifically designed NOT to address. ”

    Yeah, but, couldn’t those equally be addressed simply as state laws?

  14. For things that a state considers fundamental rights, no. Constitution > all. For example, a law that is the equivalent of a state ERA is not the same as having that ERA as part of the state’s Constitution.

  15. Firmly, no. States are supposed to be laboratories of democracy. Try things on the smaller level to see what works best for them. Socialized medicine? Very strict limits on eminent domain? Net neutrality? Funding small business? Allowing strong unions? School choice? Strong social safety net?

    These questions sometimes need to be subject to judicial review and state constitutional constraints. We are free to move to places that are more in tune with our values.

  16. For what it’s worth, no province in Canada has a constitution– it’s all precedent. Yet things seem to work well enough.

    On the other hand, our Federal government has a constitution that is extremely difficult to amend on major matters. So difficult, in fact, as to be effectively impossible. Nevertheless, once again, things seem to work well enough.

    We joke in Canada that we’ll have a monarchy longer than the UK, because we could never amend our constitution to get rid of it.

  17. States allow the public to amend constitutions to get around recalcitrant politicians in the legislature. To my mind, this isn’t a bad idea, it just shouldn’t be a simple majority. And perhaps there could be a super majority legislative veto vote possible, to protect the public from jumping onto an issue which is manifestly bad law. Which presupposes that the legislatures know what good law is.

    Drat. No easy good solution.

    Dr. Phil

  18. A lot of those states don’t have any other mechanism besides a constitutional amendment for the voters to enact a law that is blocked by the legislature or the governor. The public school class-size limitation in Florida is an example. Most of the government establishment was against the amendment since it would require increases to public school spending.

    I’m only in favor of raising the bar for constitutional amendments in states where there is a mechanism for ballot initiatives to become law. So unless a state has a way for citizens to directly vote on proposed laws, the bar for constitutional amendments should be lower than the US constitution, but higher than just a majority vote, since a regular law requires a majority vote plus the governor’s signature.

    Florida now requires a 60% super-majority for ballot initiatives to become constitutional amendments, which may be the only thing that prevents the anti-gay marriage amendment from passing. I expect a lot of whining about this one if the vote is anything from 50% to 59% in favor.

  19. 1. Yes, some states do set the bar too low for amendments. I would like to see the bar set higher. But then again, that’s what the people of these states have decided for themselves. Or is this just selective federalism?

    2. Regardless of whether it would be desirable (see my doubt in point 1), actually doing it is unacceptable. If the federal government can overthrow whole state constitutions in a fit of pique, the U.S.’s supposedly federal system will be a dead letter. Federal systems serve two important purposes – first, they allow different states to meet the specific needs of their citizens – what works in California may not work in Ohio or Virginia. Second, a federal system is like a compartmentalized ship – if individual states choose unwise policies and suffer damage, the states which did not are unaffected and allow the nation as a whole to survive the stupidity of the few, just like flooded (or fire damaged, or irradiated, or exposed to the cold vacuum of space) compartments of a ship can be sealed off from the intact sections to save the rest.

    From the Supreme Court 1997 ruling in Printz v. U.S (521 U.S. 898 for you law geeks):

    It is incontestable that the Constitution established a system of ”dual sovereignty.” Although the states surrendered many of their powers to the new Federal Government, they retained ”a residuary and inviolable sovereignty,” This is reflected throughout the Constitution’s text, including (to mention only a few examples) the prohibition on any involuntary reduction or combination of a state’s territory, the Judicial Power Clause, and the Privileges and Immunities Clause, which speak of the ”Citizens” of the states; the amendment provision, which requires the votes of three-fourths of the states to amend the Constitution; and the Guarantee Clause, which ”presupposes the continued existence of the states and . . . those means and instrumentalities which are the creation of their sovereign and reserved rights.” Residual state sovereignty was also implicit, of course, in the Constitution’s conferral upon Congress of not all governmental powers, but only discrete, enumerated ones, which implication was rendered express by the 10th Amendment’s assertion that ”(t)he powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

    The Framers’ experience under the Articles of Confederation had persuaded them that using the states as the instruments of Federal governance was both ineffectual and provocative of Federal-state conflict. . . .

    The Federal Government may neither issue directives requiring the states to address particular problems, nor command the states’ officers, or those of their political subdivisions, to administer or enforce a Federal regulatory program. It matters not whether policymaking is involved, and no case-by-case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.

  20. John:

    I am, in fact, a lawyer, but some of this stuff is a little fuzzy since it’s not what I do. The nice thing about having certain rights embedded in the constitution is that it makes them harder to change. There’s a fundamental concept in Commonwealth and US constitutional law which is that one legislature cannot bind the next legislature. So this legislature can’t say: “beer shall henceforth be subsidized at $2/case and no legislature hereon out is allowed to change it.” The only way you can bind a legislature into doing (or not doing) something is to build it into the constitution, because the constitution is what gives the legislature its power. So, fundamentally, it’s the better way to protect things. California is such a Dem-dominated state these days, that it wouldn’t much matter here, but imagine real swing states: Ohio, Colorado, Florida, where whether something was or wasn’t a right depended on how four or five legislative districts moved on a given election.

    There’s no reason you couldn’t protect things with laws (caveat: whether something is a law or a constitutional protection can change the level of scrutiny in court, but that’s a discussion for another day), except that you don’t know what the next bunch of clowns are going to do. As Warren Buffett points out: “invest in companies any idiot can run, because sooner or later, some idiot will.” Good advice about governments, too.

    I’m with you a higher bar to amend the constitution, but I don’t see how you can work out a pure-structure constitutional mechanism for state governments. Of course, you could make laws themselves very hard to pass, but I do not (as we said across the Midway from you college folks) to start fighting the hypothetical.

  21. States are given the flexibility to run their states however they want, within the general guidlines set forth in the Constitution. If a particular state wanted to adopt the ideas you (Scalzi) set forth regarding ammendments, then (as previous commenters stated) they can ammend their own constitutions to do so.

    Suggesting that the federal goverment scrap all the individual state constitutions and replace them with one more to our liking is something similiar to Senator Palpatine dissolving the Imperial Senate in Star Wars III. You are thinking like an evil dictator. Well, not necessarily an evil one, but a dictator nonetheless.

  22. As it is now, amending my state’s constitution (florida) is the only way that I have to directly effect law in the state.

    Explicitly false. You’ve got a state representative and a state senator. You can (and should) know who they are, where their office is and can bug them by phone, snail mail, email and in person visits to their office. You can do the same to your governor.

    As far as state constitutions go… they *shouldn’t* be long and complex documents. A constitution is for fundamental legal principles. Regular law is for other stuff.

    Pennsylvania regulates townships, boroughs, cities and several other assorted arrangements of people in the constitution (which takes up several shelves in the average library). Townships are unincorporated land, and have a non-functional form of government due to the state constitution. And even if the citizens *want* to incorporate, it is nearly impossible to do so because of the way the constitutional provisions are written. So the state’s population is about 50% rural, and will remain that way… even tho most of those rural people live in towns of 10-40,000. I’m pretty sure that incorporating a borough is not a grave constitutional issue.

    I can see the need for a state constitution to be more specific than the federal constitution. Voter eligibility is handled on a state by state basis, and that is pretty fundamental. And a state might wish to have a more comprehensive bill of rights than the federal government. They also might want to establish cabinet level positions in the constitution, to make separation of powers clearer and more comprehensible. Even so… I doubt a really thorough constitution should be so long that it’s unreasonable for a citizen to read it. It should be brief enough that children can memorize decent chunks (like say, the state’s bill of rights).

  23. Ohio appears to be addicted to amending our constitution.

    Why on earth is there an amendment to raise money with bonds? Why is there an amendment to ban smoking inside public buildings?

    A constitution is the set of laws to establish how a country or state should be run. How laws are made, how representatives are elected, etc. Not this current lunatic amendement about building a casino.

    I agree completely with you, John. And we better make note of this, it probably won’t happen again in our lifetimes.

  24. “Sub-Odeon, I can’t even begin to tell you how fucking bored I am with listening to people offer up “solutions” to the whole marriage thing that
    a) have absolutely no chance of ever occurring in the real world;
    b) have absolutely no bearing on the immediate issue at hand.”
    – John Scalzi

    However much states should not be in the distribution-of-fundamental law business (in my opinion, “not at all”), they are, and that won’t be re-organized until at least after the country experiences some kind of severe discontinuity (ie, revolution or collapse). Your proposal thus has a very slim chance of ever occurring.

    Further, I’m not sure what the issue at hand is here. State constitutions change more frequently than you’d like? What is the negative consequence that you want to stem, other than your offended aesthetics? Does “talking about [state law] as an abstraction allow people to avoid the moral consequences of destroying [them] in the real world?”

    I agree entirely that there are real, unfortunate and unnecessary limitations to our federal system. Personally, I think that theoretical, pie-in-the-sky discussions of solutions like yours can be fruitful, but it seems that you do not always agree? Maybe you felt this subject to be more abstract and less likely to result in wreaking havoc on real people with real feelings than the discussion I have quoted you from? I’m not at all sure, myself: perhaps wrongly, I’ve learned to equate any talk of “states’ rights” with some form of disenfranchisement…

  25. Nick Novitski:

    “Your proposal thus has a very slim chance of ever occurring.”

    For the purposes of this discussion, I’m not actually concerned with whether it could happen (although people are free to speculate on such), I’m merely tossing the idea out there for people to consider.

    As regards the quote from me you reference, I’m not at all opposed to blue-sky speculation on general grounds, I just didn’t want it in that particular thread.

    “Further, I’m not sure what the issue at hand is here.”

    Well, my issue is that I think constitutions, as fundamental documents of state law, should not be frivolously or easily amended, since the constitution outweighs all other laws of state. So I’m wondering if they shouldn’t be made harder to amend, and also, since I generally have smart commenters, I wanted to see what they think.

    Mind you, the proposals I offer are not necessarily consonant to my own thoughts (for example, I don’t think I’d go so far as to junk all existing state constitutions). I just thought they would lead to an interesting discussion.

  26. This is one of those debates that will never end.

    Today seems to be a field day for such debate at Whatever, yes?

    The question is not states rights and law, versus federal rights and law.

    Its how much do we protect and empower the individual, versus how much to we protect and empower the collective?

    Our national and state constitutions are actually an exercise in the impossible: collective documents written to effect the will of the collective, but with specific proscriptions against infringing on the personal rights of the individual.

    And the truth is — as with gay marriage, as with the war on drugs — the personal rights of the individual sometimes run headlong into the will of the collective.

    Currently, the courts seem to be our primary vehicle for defending and uplifting the individual against the collective. But past a certain point, when do the courts become, not a judiciary, but an oligarchy? Writing and making law without any consent or input from the collective, at the behest of a minority?

    I agree with John’s basic idea that any constitution — state or federal — ought to be VERY tough to ammend. But as someone else noted, in an imperfect republic, if changes in the law can’t be pushed through via ballot initiatives, and the current crop of representatives is disconnected from (or ignores) the constituency, what hope does the common person have of truly influencing or changing law and government?

    Again, something we could debate endlessly. Because there are no definitive answers. Just theories, and opinions.

  27. I filled out my Ohio absentee ballot last night and I was appalled that there were 4 constitutional amendment issues.

    In my mind none of the issues behind the amendments needed to be amendments. They should have been laws. (In fact one of them is an amendment that essentially reiterates existing law, but overrides existing sections of current constitutional rights.)

    While I would not have voted for any of the issues on their merits alone, I voted no on them out of hand because they were constitutional amendments.

    So I agree with John on both counts. Make it harder to change, and lets start over with constitutions that make some sense.

  28. Kevin Blake:

    “While I would not have voted for any of the issues on their merits alone, I voted no on them out of hand because they were constitutional amendments.”

    Yes. I generally do this as well. There are very few things which need to be a constitutional amendment.

  29. Did John actually suggest having the federal government do the tabling proposed in item 2? If he did, I missed it. I read it as being mechanism-neutral – the nation could just as easily rise up and demand, each within their own state, that their state replace the state constitution with a limited descriptive one.

    I live in California, and I appreciate the opportunity to change the state constitution, but I’d like to see it be harder to do. Two-thirds majority would probably do it for me. I seem to recall that propositions that increase taxes require a two-thirds majority; seems like changing the constitution should be at least that hard. Maybe even harder – say, three-quarters.

    As to #2, I have no strong opinion, except to note that specific Bill of Rights-type freedoms should be included in the new slimmed-down constitution.

  30. Kristi Wachter:

    “Did John actually suggest having the federal government do the tabling proposed in item 2? If he did, I missed it.”

    I said that’s one way it could be done, via US constitutional amendment, although I doubt seriously you could get the states to agree to it. If something like that were to happen at all, it would have to be at the state level, I suspect.

  31. When I voted in OH two weeks ago, there were seven or eight amendments listed, none of which fundamentally had anything to do with the state’s Constitution itself, just laws that they wanted passed. And I love how at the end of each proposed amendment there is always the statement “this would be a permanent change…” but at least one of the proposed amendments was amending a previous amendment…

    I’m so sick of “Issue 6″ commercials. I realize there are plenty of pros and cons about casinos, thanks.

  32. Sub-Odeon @# 29:

    You know, I had a snarky response written, but I went back and re-read your comment, and it seemed a rational positing of subjects worthy of debate, rather than worthy of snark, so I deleted it and started over.

    It seems to me that the tension between the “rights of the individual” and the “will of the collective” has been a foundational question of government, especially in the US, for about 250 years. And that the genius (yes, I use that word intentionally) of the system of government that exists in the US is that it gives numerous outlets for that tension to resolve itself.

    The will of the collective is filtered through representatives who have to be responsive to individual constituents and who are, themselves, individuals and are therefore (hopefully) somewhat cognizant of the need to uphold individual liberty. But these representatives are also beholden to the collective for their offices, and will therefore tend to reflect the will of the collective.

    To the extent that the will of the collective, as reflected in legislation or executive order, impinges on the rights of the individual, the individual can appeal to the judiciary to uphold their rights.

    To the extent that individuals feel that their representatives are not representing their will – or upholding their rights – they can vote their representatives out of office.

    Initiative and referenda clauses give even more recourse for the “collective will” to exert itself – but again, subject to the constraint that individuals can appeal to the judiciary if they feel this expressed collective will impinges individual rights.

    And the judiciary itself is either appointed (by an executive which is itself elected – by the collective will) and confirmed (by a legislative arm which is also elected), or is directly elected, and therefore should to some extent reflect the “collective will”.

    Checks and balances – gotta love ‘em.

  33. I live in California and I’ve been refusing for years to sign petitions that canvassers wave under my nose unless and until someone waves one for an initiative to limit or ban the initiative process. It bothers me a lot that you can hire people to go out and gather signatures at a quarter a pop to put whatever idiot thing you want on the ballot, and if 50% of the voters think it sounds like a nice idea, then it’s written in stone, unamendable by the legislature. It bothers me even more that you can call it a “constitutional amendment” instead of a “statute” and undermine the state courts too, with the same simple majority vote.

    In my 22 years of voting (and 30 years of political awareness) I can only think of a small handful of initiatives that actually did the state any real good, and a lot more that have caused long-term pain, as the state government is forced to twist and squirm and contort itself into weird shapes to deal with a dumb decision by voters decades ago while still getting their jobs done.

    (That said, I’m votin’ for the Supertrain.)

  34. No, thank you, John. Not a good idea.

    Here in Minnesota, the way most of them are done is that some text is passes by a majority of members of both houses, and it is then voted on by the public. It needs an absolute majority of those voting in the election to pass — if you vote for anything on the ballot, you have voted “No” on the amendments unless you explicitly vote “Yes”. Most amendments fail, though, and don’t even get a majority of those who actually voted on the amendment.

  35. Writing and making law without any consent or input from the collective, at the behest of a minority?

    I’m really not trying to be snarky here, but this is nonsense. The judicial branch does not operate “at the behest of a minority”; it is bound by existing law. Which means that if a court finds X law is unconstitutional, it is saying “A majority of the people have agreed that Y should be a part of the constitution. It takes a great deal more consensus by the people to put a provision in the constitution. Therefore, if X law conflicts with Y, then Y is controlling, because it is a better reflection of what the people want.”

  36. mythago,

    I know the courts are there to interpret law, not make it.

    But it seems our operational reality is that any group which can’t get its point rammed through the legislative or ballot initiative process, inevitably turns to the courts in order to “interpret” the issue in a way said group desires.

    Hence the endless fights over liberal versus conservative SCOTUS nominations. Everybody knows that a liberally-slanted SCOTUS and a conservatively-slanted SCOTUS can “interpret” things quite differently.

  37. Florida recently passed a constitutional amendment that now requires a majority of 60% of the voters to vote for to make it pass. Schadenfreude note that it passed, but not by the requirement it now sets forth. Note that unlike Ohio and some other states, constitutional amendments are the only way that citizens can change the rule of the land. State legislatures can pass laws and also allow constitutional amendments that get voted on. Which is also problematic that the legislature is then responsible (not) for implementing the amendment. Two amendments had to be amended off because it would have bankrupted Florida, the requirement for high speed rail between all the large cities (Tallahassee, Jacksonville, Tampa, Orlando and Miami) and limiting class sizes to a max of 23 students.

    And because of the 60% requirement, I’m pretty sure that Amendment 2 (Marriage Protection Amendment) won’t pass. 50%, I’d say yes.

  38. Our operational reality is that laws are subject to constitutional scrutiny. That means that yes, somebody affected by a law can bring a lawsuit, which may require the courts to determine whether or not a law is constitutionally sound.

    Just because a court did not reach a result you like has nothing to do with whether its interpretation – note absence of scare quotes – is legally sound, much less correct.

    Bluntly, anyone who has not read In Re Marriage Cases has no business flapping their gums about how it was judicial activism, writing new law, against the Will Of The People, or any other ignorant nonsense that suggests they are talking out of the wrong orifice. It is certainly possible, if dumb, to conclude that the dissent is legally correct; it is mentally crabbed blathering to say that because the Court found a ban on same-sex marriage was unconstitutional, that it “made new law” or was “liberal”.

  39. Courts do make law in the US, whether they admit it or not, which is why their decisions become so politicized, specially considering judges are not elected officials. Roe vs. Wade is the poster child for judicial overreach (for the pro-lifers) or progressive advance (for the pro-choice).

    This is an inevitable consequence of Common Law. Unfortunately, the only state in the Union to use Roman Law, Louisiana, is not exactly an inspiring example to follow.

    It doesn’t help that advocacy groups never stick to a consistent principle on this, criticizing judicial overreach when a decision goes against them, shouting praises to the new Daniels when it does in their favor.

    There is a good reason why California has such a populist approach to revising its constitution, a reaction to the power and abuses of the 19th Century Robber Barons who exploited the state with pliant politicians in tow. Hence countermeasures for the people to hold politicians accountable, such as recalls and initiatives, which of course can itself be abused.

    As for the threshold, prop 22 passed with 2/3 of votes in 2000, and is essentially the same as prop 8, so the procedural safeguard would not necessarily have been such a safeguard after all.

  40. Roe vs. Wade is the poster child for judicial overreach

    Really? I’d think Dred Scott is a better candidate. If you’re more modern, Employment Division v. Smith is another, as are any number of civil-forfeiture cases. (If anything drove me into the arms of the Federalist Society in law school, it was court case after court case titled something like People of the United States v. A Red 1957 Ford Fairlane, where the conservative jurist’s ruling was essentially “Okay, this was unlawful and stuff, but drugs are BAD.”)

    Courts do make law as a consequence of interpreting other law – again, no scare quotes – but developing common law based on existing legal principles is much different than making law based on what the judge wishes it would be.

  41. Mythago @ 42

    Just because a court did not reach a result you like has nothing to do with whether its interpretation … is legally sound, much less correct.

    Without snark – How does Dred Scot apply here? Was it considered a correct interpretation under the law at that time? Or because it was rendered, did it become correct?

  42. @45: Dred Scott spends 50 pages justifying why – given that Congress has authority over the territories, something quite express in the Constitution – Congress didn’t have authority over slaves in those territories. Not many folks even then thought it was well reasoned.

    I think it was Hugo Black that said of the Supreme Court: “We’re not the final authority because we’re infallible, we’re infallible because we’re the final authority.”

  43. What I wish. for California at least, is either 1) ban the initiative process, or 2) ban paid signature gathering.

  44. There’s a reasonable point to be made that the California initiative process lets us get around the … spectacularly … ineffective state legislature.

    The current process lets a few nuts with a few tens of thousands of dollars to hire circulators get just about anything up on the ballot, yes. But it also lets anyone elected to the state assembly in Merced put bills into the state assembly that would be laughed at in San Francisco or LA or Sacramento.

    If one starts to futz with checks and balances, one should say why one wants to do that, and honestly look into what are the secondary effects going to be of pushing on over *here*…

    Failing to think about what will get encouraged, boosted, made harder, who will be empowered or encouraged to behave badly, is an extremely poor approach to public policy. Pundits get away with firing such bombs into debate far often than they should. John, rise above the pundits and give us some background and context…

  45. What The Pathetic Earthling said. I also happen to think Roe v. Wade was about C+ on the sound legal argument scale, but it’s not the horrible, twisted mass of judicial activism claimed by people who a) don’t like the result and b) haven’t read it carefully.

  46. There’s a reasonable point to be made that the California initiative process lets us get around the … spectacularly … ineffective state legislature.

    The California initiative process is very nearly the whole reason the legislature is so ineffective.

    Start with all the constitutional amendments that have passed requiring the legislature to spend money (that doesn’t necessarily exist) on certain particular things. Toss in another amendment that dramatically cuts the state’s ability to levy taxes. Then add in the idiotic law that passed ten years or so ago requiring that legislators all retire as soon as they’ve had enough time to get good at their jobs. What did people expect to happen?

    Ban initiatives. Ban them now.

  47. Absolutely not. One of the biggest problems with the federal constitution is that it’s so difficult to change. Bill of rights aside, what about the main text of the constitution is so wonderful that it could not benefit from an overhaul to, for example, allow third parties to exist as more than mere sideshow attractions, or to eradicate the electoral college?

    The problem with an inflexible constitution is not just that it becomes calcified and increasingly irrelevant as the needs of the polity changes, but that the more irrelevant it gets the more irrationally but fervently people feel the need to defend it. Already in America there is a quasi-religion which elevates the Constitution to the level of scripture and the founding fathers into prophets and demi-gods. The mythologising of 18th century political theories is one of the great mysteries of the American experiment. Why, after all, should future generations not be able to say that grandad was wrong?

  48. I disagree with your premise on a couple different points.

    1. State constitutions are a testing ground for new ideas and ways of governance. Yes, this type of democracy is messy, but it allows the average person to have a direct access to their government. The ideas don’t often work yet that is part of the process and this leads to my next point.

    2. State constitutions are rewritten, often. That is the beauty of the system, when the state constitution gets to bloated or unwieldy the people of the state start over again. My home state of Michigan has done this often, we will probably be rewriting our constitution in the next decade. Part of me wishes we would do this with the federal constitution, except it would tear the country apart in the process.

  49. Part of the problem is that those elected have discovered that they can be re-elected by pandering to those who will vote for them. So … get rid of voting, while keeping representative governance.

    Joe is disgusted with the current slate of Minnesota representatives (there are eight.) He announces that he wants one of the slots and distributes what positions he favors. People who are also disgusted with their representative, or who have none, sign up for him to represent him (if they have a current representative, their name is removed from her list of representees.) The number of people signed up with the current eight falls, as people join Joe. Eventually (assuming he’s convincing) his representee total makes him one of the Eight. He’s in, for at least a year, and then until his total is lower than the other seven members, and a challanger. Or any of a number of other schemes. Yes, some people’s opinions will be ignored because they don’t sign up for one of the eight most favored. They can band together and nominate and petition one of their own into office.

  50. I’m for anything that puts more power in the hands of the people governed. By making the state constitution harder to amend strengthens that state in the same way that the Constitution strengthens the nation. Consensus to change is can be a powerful thing.

    Do Governors swear to uphold their state constitutions when assuming office (if they don’t already)? Would a new round of Federalist Papers come to play?

  51. Haven’t read a thing posted here, but want to weigh in.
    Live in CA. Work in policy/politics in Sacramento. Often have to deal with implementing initiatives. HATE THEM. Virtually always VOTE NO (and could live with not voting on them at all). Horrid way to make policy and a horrid way to govern. Completely agree John. That is all.

  52. John, we agree that the barrier to constitutional amendment (especially via initiative as in .ca.us) should be high. Where I must part ways is in thinking that such a barrier can — or should — be enforced by part of a state’s constitution. Although a lot of crazy stuff gets proposed each election, much of it gets discarded, thanks largely to those who vote NO and vote often.

    I favor minimalism in legislation, law-making, and most aspects of government in general.

    ____
    “Rules cannot take the place of character,” reads the Greenspan quote. “Discipline yourself so no one has to,” John Wooden once said. “Integrity has no need of rules,” said French author Albert Camus, who won the Nobel Prize for literature in 1957.
    Ed Barkowitz on inspirational quotes in [Tampa Bay] Rays’ locker room

  53. I don’t believe the federal government should dictate to states how to amend their own constitutions. If the people of California or Ohio want to change the way their state passes amendments, change must be initiated from the people of those states.

  54. John, we agree that the barrier to constitutional amendment should be high. Where I must part ways is in thinking that such a barrier can — or should — be enforced by part of a state’s constitution.

    What other mechanism is there for enforcing a standard? Aside from the general definition of what makes for a state, a state’s constitution is its base-level guidelines for how it operates. One could make – I think – a very cogent argument that the process whereby the constitution is altered and what should be in it should be the very first thing IN the state constitution!

    After all, any law describing how the constitution should be handled or altered could itself be changed. So setting a restriction in a law that is any higher than the restriction for changing any law means that all you have to do is change that law before altering the constitution.

  55. State constitutions tend to be long and elaborate not because states have an inherent need for longer and more elaborate constitutions than the feds – you’re right, John, that a lot of these things in state constitutions could be addressed simply as laws – but because many state constitutions were written in the 19th century, when it was the fashion to dump the kitchen sink into constitutions. (Why it was the fashion is another question.) Look at 18th century state constitutions and you’ll find ones that look more like the federal one; and look at ones written in the 20th century, and you’ll find them relatively plain and simple again.

  56. Here in (the great State of) Texas, we have numerous Constitutional amendments on the ballot every two years because the Constitution is written so that the legislature in Austin is virtually powerless.

    The present Constitution is the third State & fourth Texas Constitution, & is generally acknowledged to be the worst of the lot, having been written during the Reconstruction period by a seriously disgruntled group of men who wanted to make sure the State government would work badly. The Governor has almost no powers except for calling a special session of the Legislature, & raising the militia in case of an invasion from Mexico or the Indian Territory (that’s “Oklahoma” for you 20th-century types), while the Lieutenant Governor (elected separately) practically controls what gets to the Governor’s desk*. Executive & judicial functions are carried out by a large number of independent boards, some of whose members are elected at large & others from districts. If you can think of anything stranger than a Supreme Court (which hears only civil appeals — there is a separate Court of Criminal Appeals) elected by district on a party ticket for short terms, feel free to mention it.

    Personally, I favour the New York system of requiring the Constitution to be revised every ten years. I would go so far as to assert that the State Constitutions should be much more mutable than the Federal document. Each State government, even Texas’ or California’s, deals with a narrower range of conditions & should be more flexible & responsive, not only in what it does but in how it does it, than the Federal government, which has to deal with the whole nation. An error in a State constitution can be detected & corrected by reference to the experience of other States similarly situated, just as a good idea can be discovered & copied, but a Federal change affects all the States, & any error is difficult to put right at least partly because it is not easy to detect for a long time afterwards.

    *In other words, G.W. Bush, as a single-term Texas Governor, had no actual executive or legislative experience when he ran for President.

  57. To all,

    I had the honor of sitting on a research committee appointed by the City Club of Portland, the largest civic organization in Oregon. The subject we researched was the Initiative and Referendum System in Oregon (I&R). Oregon was one of the first states to adopt such a system, and for many years many called the I&R process the “Oregon System”. Oregon’s system is basically as open and pernicious as California’s.

    Like California the I&R system in Oregon has resulted in a constitution packed with stuff that has no business being in any constitution.

    Echoing many of the commenters above, the constitution of any political entity should basically cover the following:
    The fundamental governing structure of the entity.
    The limits of that governing structure.
    The rights and privileges of the members (citizens) of that entity.

    One could add a few others, but that covers most of it.

    I won’t go into a deep discussion here, but most of the constitutional problems discussed in the comments are a consequence of the I&R system.

    I urge anyone interested in the Initiative system – and its impact on state constitutions – to read our report. It covers the history of the system, its use throughout the country, and recommendations on how it could be improved. The URL for the report is below. It is free for downloading. And, given the scope of the subject, it’s reasonably short.

    http://pdxcityclub.org/pdf/Initiative_Referendum_2008.pdf

    Rick York

  58. Prop 8 is a bit confusing. Hasn’t the US Supreme Court already permitted gay marriage under the US rather than state constitution? Can a state constitution restrict a right permitted under the US Constitution, or isn’t the US Constitution supreme under the doctrine of federalism??

  59. Luke:

    “Hasn’t the US Supreme Court already permitted gay marriage under the US rather than state constitution?”

    No. And there’s a federal law banning recognition of same-sex marriages by the federal government.

  60. I’m with you on #1, not so much on #2. I’m not really big on scrapping stuff wholesale that’s been legally enacted under the existing system.

    Early this year I got a robo-poll call about the U.S. Constitution, of all things. Several of the questions asked were variations on a theme, all asking whether I’d be in favor of scrapping the whole thing and starting over. I was horrified and livid that someone would even consider that question worth asking. So when a permutation of that theme asked whether it should be scrapped, tweaked, or left alone, I overreacted just slightly and went with “left alone.” Under the right circumstances, I might in fact support a constitutional amendment, such as one that either scraps or revises the Electoral College process. But it would have to be a really well thought-out amendment, good enough to pass those constitutional hurdles.

    Earlier this evening I filled out my sample ballot as a cheat sheet, except for a few races I still need to research. In Arizona, the 100-numbered propositions are constitutional amendments, while the 200 and up are enacted as laws or bond issues. This year’s 100s are all bad ideas, and most of them are lobby-driven cheats playing the opposites game, where more choice means fewer options and “majority rule” means that everyone who doesn’t vote counts as a no. The one that is actually straightforward is the odious Proposition 102, the AZ equivalent of California’s Prop 8. I worry a little about constitutional amendments being made on the basis of deceptive wording and advertising, often funded from out of state. Fortunately, Arizonans, seldom pass these things, probably on the theory that if it’s not clearly explained and clearly needed, it doesn’t deserve to be enacted.

    Come to think of it, that majority rule one is sort of a back door, deceptive version of what you’ve suggested. If over half of all registered voters must vote for something before it passes, that’s probably more than a two-thirds majority of actual voters. But it’s directed toward any initiative involving money, not constitutional initiatives. And in any case, it shouldn’t be proposed and advertised in the form of a trick question.

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