Topic: Constitutional Issues
Proposition 8 and Revisions of California's Constitution While some argue that the people of California are not worthy of the initiative process the state constitution liberally grants its citizens, the very heart of California's law disagrees. The ballot initiative process is not a twentieth century libertarian whim cooked up by 1960's radicals. Instead, it was adopted to directly address the challenges and pressures of a representative government in the modern era.by Paul Benedict
(libertarian)
Monday, November 24, 2008
California's Preamble is the usual: "We, the People of the State of California, grateful to Almighty God for our freedom, in order to secure and perpetuate its blessings, do establish this Constitution." This is a wonderful echo of the age of the founding fathers of the United States of America. However section 1 of the first article of California's constitution is not the unusual: "All political power is inherent in the people. Government is instituted for their protection, security, and benefit, and they have the right to alter or reform it when the public good may require." This has a bold and defiant tone, the tone of those who have had enough of pretense and hypocrisy. These are grave and solemn declarations. They are the words of men and women who have had some experience being vigilant in the great and ongoing struggle for liberty. Surprisingly, the rest of California's constitution lives up to these brave words. That's not usual either.
For these very self-evident reasons, any refusal by four judges to enact Proposition 8, by describing it as a revision, would to be to drastically alter the heart of California's constitution.
The Constitution of California is a living document, but its life is not ultimately in the hands of a Supreme Court, and its breath does not wait on a two thirds majority of the state legislature. California's constitution is specifically designed to live and breathe with the people of California. Nor was this done for light and transient causes. California's constitution is borne from the lessons of the undergraduate School of Error and graduate school of Painful Experience in this Land of Opportunity.
Of all the states in the union, California has the most experience with constitutions. California drafted its original constitution in coordination with a military proclamation shortly following the Treaty of Guadalupe Hidalgo. California then redrafted its constitution only thirty years later. It was in this second draft of its constitution that California began its loathing of political authorities and its love of the initiative and referendum process. Finally, after years of committee analysis, in 1966 California used the mechanisms within the 1897 draft to significantly revise its constitution. This it did with a constitutional convention and approval of the electorate. Ultimately, the revision committee completed the final part ofits revision process with a series of tailor made ballot initiatives (CPS 6). Hence, if California's constitution is one of the most liberal in the union, it is a political path based, not on naïveté , but on experience. In other words, if California gives greater authority to its electorate than any other state, it is because California has learned from its history. Its institutions recognize that those in authority are often as impervious to truth as they are imperfect in character. California's limits on its Supreme Court Justices, as set out in terms of recall and elective terms, is not done without a very clear understanding of the challenges to freedom that arise in every generation, even in nations governed as constitutional and democratic republics.
The problem with the founding father's notion of an independent judiciary is that our forefathers benignly believed that the check on judges would be the laws and the constitutional documents they embodied. California discovered that such a check was not always convenient. While, on one hand, California gives its chief justice tremendous powers over the interpretation and the culture of interpretation that surrounds California's laws, the consequences of its painful experiences with the powerful forces of large business interests during the Civil War period left the people of this state with an extremely sober view of every element of representative government, including the judiciary. California's judiciary is one of the least independent in the nation. While judges are appointed by the governor, the judges are subject to reelection every twelve years. Furthermore, they are subject to recall at any time by way of the recall petition process.
It would not be beyond imagination then to conceive of a unanimous Supreme Court decision in favor of the proponents of Proposition 8, and that is as it should be according to California law. In the United States Constitution five judges closely divided with four others in the interpretation of the federal constitution plus the silence of the legislature can equal, in practical terms, via stare decisis, an amendment or a revision or of the constitution. Of course the more devided the judiciary, the more divided the legislature, so, in the course of time, judges have often changed the constitutional rudiments of our federal laws. In California, though, the people must also remain silent for a judicial opinion, an interpretation of the law to become, via stare decisis, an amendment to or a drastic revision of the California constitution.
In the matter of Proposition 8 and Proposition 22, Californians were not silent. They thought long and hard; twice Californians have clarified the definition of marriage. This may have been an altogether silly exercise forced on them from above, but it was, nonetheless, a gracious and constitutional one. All those who oppose that definition ought to accept the verdict in the gracious spirit in which it was legally and duly offered. The definition of marriage Californians have declared doesn't harm anyone, and it does apply equally applied to all. Homosexuals may also get married to one member of the opposite sex, just like every other Californian. Californians do not hold anyone's sexual orientation against them. The people of California have never been perfect, and they are not now. California's constitution though, isn't bad. Other states ought to follow California's example of liberally granting the final say and authority to the people. After all, where do all constitutions that are worth the ink originate?
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What makes this sort of B.S. even remotely libertarian. It is pure conservative trash. This is the reason that so many libertarians have left the LP -- we got this sort of right-wing garbarge from Barr. I wish conservatives would stop dressing in libertarian drag.
Posted By: Paul Benedict
Date: 2008-11-25 12:31:09
HLM,Did you even read the article? California's constitution limits the judiciary in very libertarian ways. I even applauded the limits placed on the legislature in the 1897 in response to big business special interests. Oh, hey, I even used the word "liberal" with reference to the libertarian side of its etymological lineage.No... don't tell me... you are NOT a single issue libertarian, a.k.a. a libertarian in disguise, a wuf in sheep’s clothing?Walt, Have you been reading the papers at all? The wise one's, instead of jumping out of the Empire State Building offices as the 1920's are taking all of us with them. A more direct democracy is the consequence of tyranny of fools. If such a tyranny ends, because no self-respecting common man wants the trouble of messing with politics, a more representative, delegation of responsibility will ensue.
Just calling something libertarian does not make it so. Prop 22 and Prop 8 have everything to do with imposing the majorities opinion on the minority. This article is right wing religious bigotry through and through just like Prop 22 & 8.
The article also ignors the fact that the Yes on 8 campaign lied about the purpose of Prop 8. It became an issue about what might be taught in schools instead of the right of same sex couples to marry. This is the problem with the initiative process. The rights of a minority should not be put up to popular vote.
Let's not return to the era when Japanese can be imprisoned because of fear and lies. Jim Crow laws ended because of the courts. Marriage rights were extended to opposite race couples by the courts not a popular vote. I grew up in Alabama and know that seperate is NOT equal. As a gay man who pays taxes, works for a living, supports my community, keeps up my home - why should my right to marry be taken away?
The purpose of a constitution is to protect the minority from the majority.
The logic of the the article seems to be we Californians can define anything as whatever we want. California voters could define marriage as a union of a man and a woman of the same race', as this would not deny anyone the right to "get married to one member of the opposite sex", and it would apply equally to all.
If we had enough people that wanted it, California could have a constitutional amendment that defines marrage as ' a union between two members of the same sex'. No harm, applies equally to all.
Taking this logic to the extreme, a 'human' could be defined as 'only persons of Europeon descent' if you could convince enough voters in the state to pass it. No harm, applies eqally to all (as only whites count now).Just hope the state doesn't get taken over by white supremists.
Afterall the constitution is designed to "live and breathe with the people of California", just hope the people are ones you somewhat agree with.
Posted By: Paul Benedict
Date: 2008-11-26 10:07:57
The biggest problem with more direct forms of democracy is that important issues are fought out in sound bites (like education becoming the focus of the last month's debate). During the 1960's revision period Bernard Hyink (see page 5 of article: [link edited for length]) made a series of serious arguments against the prevalence of direct democracy in California's constitution. Californians did not want any part of returning to a more representative form of government. It is this direct democracy that is more Libertarian because it liberally gives the people greater say. A reduced dependency on an independent judiciary is another libertarian notion that arose in California as the institutions of the federal constitution began to struggle under the pressures of massive industrialization during the Civil War period.
There have been many really stupid things written into California's constitution over time, including, as some of you point out, racist notions in bold print. These things have all been eradicated, but the principles of greater direct democracy have been strengthened. Constitutions don't come from a Divine Being. They come from people. Good people don't come from governments; good governments come from good people. There are those, (I am not among them), that argue that even our notions of right and wrong don't originate from a Higher Power. I do believe that things like passionate self-interest, greed, and jealousy often blind some people to the voice of conscience. These people, sadly, are too often the ones that are in authority in political parties.
Some folks talk about how health care must be reformed because of greedy and corrupt doctors. My response to this has always been to throw up my hands. If the people who deliver the health care are corrupt, it's over. What can anyone do? That's how I feel about the "checked" use of a greater direct democracy in not only California, but in the nation. If the people, of whom, by whom and for whom government exists, have lost their way, what's the point?
In this most libertarian of states, with one of its most tolerant and benevolent attitudes toward all, it is wrong to say that the verdict of California's constitution is absolutely authoritarian. That is being a one issue libertarian. I think, because of the federal constitution, and the language of the California constitution regarding it's subjection to the federal constitution, the objections some raise about returning to a KKK society is a read herring. I say, "I think", because San Francisco seems to have seceded from the union relative to immigration law and no one cares.
In general, it is sad that people accuse the entire populace of hate and then hate the entire populace because the populace doesn't want to lie to their kids and tell them that same sex couples are married... well not really... well legally... That's a bit much to ask, don't you agree? What's wrong with civil unions anyhow?
I saw a good Wikipedia article on the language of Prop. 8. After great debate, "could" and "might" were the words left in the ballot initiative concerning educational programs: [link edited for length]It wasn't those wicked Christians who were lying.
The educational issue became the sound bite issue that voters understood. The rest of my column touches on many more reasons that America must avoid this constitutional pitfall.
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