An even worse constitution than the US: California

[Griffin, Stephen M]

Apologies if this has been said before.  I believe the 2/3 requirement
was in the 1879 Constitution, still the foundational document for
California.  The current budget mess is the worst in a long line of
budget problems attributable in part to the supermajority requirement.
The current mess is a result of at least two other constitutional
problems: redistricting and the use of the initiative to bypass the
supermajority requirement.  Redistricting for safe seats rather than for
representatives who reflect popular opinion more broadly has been going
on in California for a long time and was hopefully at least partly
addressed by the recent initiative which passed.  The complex problems
caused by the use of the initiative to section off or allocate parts of
the budget outside the control of the legislature is covered in Peter
Schrag's book Paradise Lost.

That's a wordy way of saying that California's budget woes are an
excellent example of constitutional design gone wrong.  And I'm in favor
of a constitutional convention fix just as much as the next Levinson
(and one was proposed in the 1990s, it should have received more
attention).  If anyone's interested, I have an article on the problems
with the California Constitution (focusing in particular on direct
democracy) on SSRN.

Steve Griffin

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Sanford Levinson
Sent: Tuesday, February 17, 2009 2:08 PM
To: Mark Graber; Steven Jamar
Cc: CONLAWPROFS professors
Subject: RE: An even worse constitution than the US: California

I don't think the age of the California constitution is particularly
relevant, but it's definitely relevant that it offers the opportunity
for amendment by initiative and referendum, the explanation for the
handcuffs currently operating on the California legislative process.  

A side issue:  California constitutional law distinguishes between
"amendments" and "revisions" and does not permit the latter through the
initiative and referendum.  Thus, on at least two occasions (I believe),
the California Supreme Court has invalidated ostensible "amendments"
that, the court said, were really "revisions."  To be sure, this may
strike one as an arcane distinction, but there it is, within California
law itself (and this is the basis for challenging the legitimacy of
Proposition 8).  In retrospect, can't we say with some confidence that
most structural changes, including the 2/3 requirement for taxes or
placing term limits on legislators, in fact operate as deep "revisions"
of the political process and are, therefore, outside the i&r process,
unless, of course, one wants to say that the purported distinction
between "amendments" and "revisions" is simply nonsense and that "we the
people" are entitled to do whatever we wish by majority vote, with no
legislative deliberation at all.  (It is this latter aspect that has led
Hans Linde to suggest that "pure" i&r violates the Republican Form of
Government Clause.

Sandy



-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Mark Graber
Sent: Tuesday, February 17, 2009 1:53 PM
To: Steven Jamar
Cc: CONLAWPROFS professors
Subject: RE: An even worse constitution than the US: California

Does anyone attach any significance to the basic fact that a)
California's constitution is younger than the Constitution of the United
States, b) the particular provision that seemed to cause a good deal of
the problem is much younger than any significant amendment to the United
States constitution and c) that Californians gained this particular
provision because the California Constitution is easier to amend than
the Constitution of the United States.

The following strikes me as interesting empirical questions, one to
which I do not know the answer.  Looking at the universe of state
constitutional amendments over the past thirty years, does any consensus
exist that as a whole the amendments have a) improved the constitution,
b) weakened the constitution or c) had random effects.  We should place
great emphasis on structural amendments, since, as many of us have
pointed out, it may well be that states with similar political cultures
get the same result whether or not there is, say, a state ERA.
Similarly, how would we rate constitutional change in states that have
easier or less easy to amend constitutions.

Mark A. Graber

_______________________________________________
To post, send message to Conlawprof at lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see
http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof

Please note that messages sent to this large list cannot be viewed as
private.  Anyone can subscribe to the list and read messages that are
posted; people can read the Web archives; and list members can (rightly
or wrongly) forward the messages to others.