Tuesday, November 25, 2008

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.

California's Constitution'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 of the schools of error and hard experience in this land of opportunity.

Of all the states in the union, California has the most experience with constitutions. It drafted its original constitution in coordination with a military proclamation shortly following the Treaty of Guadalupe Hidalgo, and California 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 (CPS p. 3). This it did with a constitutional convention and approval of the electorate. Ultimately, the revision committee completed the final part of its revision process with a series of tailor made ballot initiatives (CPS 6). Hence, if California's constitution is one of the most liberal states in the union, it is a political path based, not on navet, but on experience. In other words, if California gives greater authority to its electorate that 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 the 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 all the elements 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 initiative 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 divided 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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