May 272009

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.

 Posted by at 10:06 pm

  3 Responses to “The end of the California constitution?”

  1. Nothing like the economy to light a fire under our asses! We do have a crisis in California government that needs to be addressed, NOW!
    Our constitution will only pass a budget by a 2/3 vote, which actually gives controlling interest to the minority faction in the legislature, because it can hold the budget hostage until it gets what it wants. Second, because of term limits, there is no real leadership on either side of the isle. Where’s John Burton? Willie Brown? Those guys used to make closed-door compromises in late night “sessions” in cigar smoke filled rooms. Third, because of our initiative process, the small percentage of citizens who actually vote make most of the policies which control most of the money through elections. The whole legislative process is so messed up right now that we need a convention to create a new constitution that makes sense for the 8th largest economy in today’s world! Short of a new constitution, I think the best coarse is to make all necessary cuts to REALLY balance the budget – not do what they have done by shifting $ around, and borrowing from local communities. I’d rather they raise taxes, myself, but if that’s not possible, then cut, let people move in with family members, and let the suffering begin. The state will quickly become “dumber and sicker” as one analyst put it. Only then will people realize that new $ is needed to keep this state viable. One legislator said in the Times today, “If you can’t make the best possible deal, then make the best deal possible.” Maybe that’s what they did, under the circumstances, but BIG change is needed to our constitution. What can we do?

  2. California already seems locked into a fiscal death-spiral of sky-high taxes and out-of-control spending – jacking up taxes further would backfire directly, driving more people and businesses out of the state – but, perhaps, worse, it would give another short-lived peak in government income, which would of course immediately be converted into a bigger peak in government spending – but only the second of these would be persistent, driving the state even deeper into debt.
    A ban on new borrowing – an actual ban, not “you can still borrow billions every year by naming it after Mexican food” – and serious spending restraint – no increase in government spending each year beyond the rate of inflation or GDP growth – might be enough to salvage the state. It’s getting “dumber and sicker” right now on the present course; it’s hard to imagine how finally trying to live within its means would be such a disaster!

  3. So why haven’t you joined Repair California?

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