One of the most interesting courses I took in law school was on comparative constitutional law, which I took during my semester in Germany. I think as Americans we tend to take for granted our federal constitution: that it exists, and how it exists. No matter what the school of thought behind how it should be interpreted, there’s a reverence towards it that percolates through all of them. We therefore tend to expect that other modern democracies have their own constitutional equivalents — an expectation that in reality is rarely met. Many democracies have no constitutions at all, or when they do, they don’t necessarily map to our own.
Of course, we needn’t look abroad to see these other examples of constitutions. Within our own borders each state bears its own constitution, which may greatly differ in form and substance from the one tying our nation together. Case in point: California.
I am not a scholar of California constitutional law but it is immediately apparent as a California resident that California’s bears features differing it from other constitutions. One of the most obvious is in its malleability. Every election there are several, if not several dozen, propositions on the ballot, many of which will amend the text of the state constitution. Some of these amendments read like statutory law — yet statutes to be permanently inscribed into the Constitution — while others stand to fundamentally change the operation of California’s government.
On the surface it may seem like a good idea to give the people so much direct control over their governance, but as I’ve discussed before, it’s not without some serious downsides too. Not only does it put Californians at the mercy of tyranny of the majority, due to the expense of the proposition process, it puts them at the mercy of the moneyed majority, and every election cycle the rights of minorities find themselves at risk of being trampled.
As a structural matter it also is problematic to have so much of the basic administration of the state subject to passing political whim. Take fiscal management: California’s ability to collect and expend revenue is heavily dependent on the results of periodic (and expensive) elections. While acknowledging that there are also downsides to leaving the running of the state to an entrenched cabal, sacrificing the financial stability of the state by making the ability to manage it subject to itinerant political winds, rather than trusting it to a stable legislature, doesn’t make sense, particularly given that the legislators themselves are still vulnerable to popular vote.
The above analysis would stand in any era. But today there are a few factors increasing the urgency to correct these constitutional defects. One is the announcement by the Supreme Court that Proposition 8, banning gay marriages from being recognized in the state, may stand, as it constitutes a valid “amendment” to the California constitution and is therefore not a “revision,” a type of constitutional change which cannot be implemented by popular vote. This ruling (of debatable internal coherence) allows a majority to determine the rights of a minority, something that the U.S. Constitution, on the contrary, by its construction, is designed to prevent (and is less likely to be changed to allow).
Secondly California is also facing huge budgetary problems that threaten massive service cuts and possible federal bailouts. The question has been raised, if the federal government backs California’s debt, what does it get in return as a form of security? What can it get? California is a state, not collateral, but it hardly makes sense for any guarantor to back the debt of a fiscal entity so obviously incapable of managing its finances responsibly.
So I got to wondering if, in exchange for the bailout, if the federal government could condition it on the restructuring of California’s constitution. Obviously doing so is heavily dependent on the federal Constitution, as states are granted significant autonomy under it. But California was not an original state; its admittance to the Union was done at the Union’s invitation. Surely that should leave the Union some leverage to demand the structural stability of its members, for how healthy can the Union be without it?
Not that the Union could necessarily dictate the specific form of the California constitution, nor does one size necessarily fit all anyway. But changing state constitutions is hardly unprecedented. Many states since their admittance to the Union have indeed changed their constitutions entirely (e.g., New Jersey), and often patterned the new one against the overall form of the federal one, albeit with their own policy angles and phrasing of much of the text. And indeed, there are some good things to the current California constitution that should be preserved. California is a unique state with unique needs and it must necessarily be able to govern itself accordingly.
Unfortunately, under its current constitutional form it cannot, and that must therefore change.