Constitutional democracy, California-style

“Democracy,” H.L. Mencken wrote, “is the theory that the common people know what they want and deserve to get it good and hard.”  Recent events in California reminded me of this quote.  The ill-fated Sicilian expedition, documented in Book 6 of Thucydides’ History, also came to mind.

Last Tuesday, the California Supreme Court upheld an amendment to the state Constitution approved by a state-wide ballot measure.  The discussion centered on whether this measure was an amendment or a revision to the state Constitution.  If an amendment, the measure would stand; if a revision, it would not.  But this case is far more interesting and important than a mere technical question of state constitutional law would suggest, for at least three reasons.

First, I find it refreshing – intriguing? scary? un-American? – that voters can amend a state constitution by simple majority vote once the measure is placed on the ballot by signatures of only 8% of the voters in the last gubernatorial election.  What kind of pre-commitment is this?  Why bother with a Constitution that can be amended as easily as this?  Also, why judicial review?  As the impeachments of Justices Byrd and Cruz Reynoso demonstrate, voters can not only overturn any decision they want, but they can also impeach the offending justices, maybe even in the same election. “Good and hard” indeed.

Second, think for a moment about the old debates that ultimately led to the enactment of the Voting Rights Act of 1965.  The leading goal of the Act was to facilitate the ability of voters of color to elect representatives of their choice.  The point seems obvious: nobody should lose elections forever; and more tellingly, nobody should lose elections forever when the state is rigging the system so that the same groups always lose. 

Puzzlingly, these teachings are ignored once we shift the conversation to the devices of direct democracy.  As soon as the election results come in, we treat these propositions as legitimate and unassailable exercises of democratic rule.  But what if the same groups always win, the same always lose?  And what if these outcomes are tracked along racial lines?  Taken to its logical resting place, this question applies to any discrete and insular minority. Whether same-sex marriages should be allowed in California might be a difficult question; but the preferences of a state-wide majority of voters, standing alone, should hardly end of the debate.

The third point was made long ago by Publius, in a letter to the people of the state of New York: “It is impossible to read the history of the petty republics of Greece and Italy without feeling sensations of horror and disgust at the distractions with which they were continually agitated, and at the rapid succession of revolutions by which they were kept in a state of perpetual vibration between the extremes of tyranny and anarchy.”  This line of argument has an impressive lineage, dating back to ancient times and the teachings of Socrates.  This is also a fitting description of California politics during those times when the voters themselves take charge of policy-making, whether to decide budget questions, gay marriage, illegal immigration, or questions of race.  The implications are breath-taking. 

Just think: Professor Grofman once wondered whether “anyone [could] seriously propose that membership of Congress consist of whoever shows up in Washington on a given day who’s willing to serve (à la the Athenian Assembly) or be replaced by a group of citizens chosen by lot and rotated yearly (à la the Athenian council)?”  If its faith in its citizenry is any indication, it would appear that California could.  Heck, why not?

Peggy Noonan on Judge Sotomayor

Peggy Noonan has written an op-ed in the WSJ that explains why Republicans need to stop demonizing Judge Sotomayor. It is one of the most thoughtful pieces I've read from someone on the right on Judge Sotomayor's nomination. This is so sensible, it is likely to be ignored.

Latin@ Justice

This morning, President Obama nominated judge Sonia Sotomayor to replace Justice Souter on the U.S. Supreme Court.  And as expected, the blogosphere is abuzz with the choice.  We know much about her story: a newyorican who went to Princeton University and Yale Law School, a former federal prosecutor first appointed to the federal bench by President George H.W. Bush.  But the points of agreement end there.  To the critics, she is a judicial activist, incompetent, and unworthy of the nomination; supporters on the left disagree with these attacks.

I do not know enough about Judge Sotomayor and her time on the bench to form an opinion about her judicial temperament or to take guesses about what kind of justice she might be.  But I am glad that President Obama nominated not only a woman, but a woman of color. It is about time.

In thinking about this nomination, I am reminded of Chief Justice Roberts’ confirmation hearing, where he analogized the role of the judge to the role of an umpire.  As the nominee explained to the Senate Judiciary committee, “My job is to call balls and strikes and not to pitch or bat.” No question, this is what judges should do, what we should expect them to do.  But to say that a justice is no more than an umpire is not to say that all umpires are the same.  As any keen baseball observer will attest, not all umpires are created equal.  When calling balls and strikes, for example, each umpire calls the game differently.  In fact, the strike zone itself is not an objective area, enforced equally by all umpires; rather, the strike zone changes from one umpire to the next, from one batter to another.  Some have broad strike zones; some have narrow ones.

The implication of the analogy should be clear.  As we look ahead to the work of the Court, it should be clear that different voices and perspectives should be represented.  This term alone the Court will decide the scope of two important civil rights statutes, Title VII of the Civil Rights Act of 1964 and Section 5 of the Voting Rights Act of 1965.  Could anyone familiar with these landmark laws really argue that the justices will decide these cases on the basis of anything other than ideology and their strategic calculations about how best to see their policy preferences reflected in law? That is, does anybody really – no, really – believe that judicial activism is reserved only for liberal judges? 

Critics usually respond by placing merit and color consciousness in opposition.  That is, Judge Sotomayor was nominated to the Court because she is a Latina and no other reason.  But this argument makes me wonder whether these critics have taken a look at the current composition of the Court, or at past justices.  Just curious: absent the Miers and Carswell nominations, I can’t think of many other instances in modern times when white nominees have been attacked similarly.  Why is it that, knowing very little else, critics assume that a Latina nominee owes her accomplishments to her race and not her hard work and intellect?

After 240 years and 110 justices, the Supreme Court might finally welcome its first Latin@ amongst its members.  For those keeping score at home, this would make it two Blacks justices, three women justices, and one Latin@ justice.  I can only hope there will be many more to come.  About time indeed.

Cheney v. Obama on Torture

President Obama gave a speech on national security yesterday and was immediately followed by a what is tantamount to a rebuttal by former Vice-President Dick Cheney. I'll leave a more substantive analysis of the speeches for a later post and make two comments about Cheney's vigorous engagement with the Obama administration's national security policy.


First, even though some pundits wonder why Cheney is speaking out and is not back in Wyoming somewhere, Cheney's campaign may actually be good for the country by stimulating a real public debate on national security policy and getting the Obama administration to articulate as coherent and specific of a vision. This is exactly what did not happen during the Bush administration. Everything was done in secret and the administration was did not any explanations for its policy until well after those policies were under way and had caused significant damage. There was no ex ante public airing of the benefits and drawbacks of various approaches to real thorny national security problems.

By contrast, we're seeing more discussion of Obama's national security approach. This is so in part because too many were silent or unaware during the Bush administration; so there is a commitment to be more vigilant. But it is also so because Dick Cheney has served as a one-man opposition party. He has forced the Obama administration to be more self-conscious in its articulation of its national security vision. He has also forced the administration to defend that vision. For example, Politico is reporting that President Obama was compelled to give this speech defending and explaining his approach to national security because the Democrats on the Hill wanted some political cover from Cheney-led attacks in order to support the administration's national security policy.

I don't think a compelling response to Cheney is "you lost, get over it, and stay in Wyoming." We as a country deserve to know what it is our administration is doing and why is it that they're doing. And if pressure on the administration from both the right and the left, forces the administration to explain and justify its national security approach, that's good for American democracy. I wish Al Gore had the temerity to do the same in the early days of the Bush administration instead of a self-imposed two-year moratorium on speaking out against the Bush administration.

Second, whatever Cheney's motives are in speaking out, certainly they include self-preservation. With some in Congress wanting to try the Vice-President for violating domestic and international law, the best defense is a very good offense. Mr. Cheney is certainly on the offensive. Dick Cheney does not seem like a man who is going to sit idly by on the hope that the Democrats will not have enough gumption to indict him; I don't expect him to heading back to Wyoming just yet.

Obama's terrorism policy

Jack Goldsmith has recently written this very thoughtful article in the New Republic maintaining that that there is not much difference between Obama's and Bush's terrorism policies. Most provocatively, he argues that much of the Obama changes have been symbolic and "and the changes [President Obama] has made . . . are designed to fortify the bulk of the Bush program in the long-run." Goldsmith's more immediate purpose is to argue that Cheney is wrong to argue that Obama's terrorism policy will put the nation at-risk because Obama's policy is not much different from Bush.


Left of center commentators are increasingly pointing out that Obama is undeniably failing in his campaign promise to be substantively different from Bush on substantive terror policies. As a general matter, although I think one has to be a bit nuanced in compararing Obama and Bush terror policies. As Goldsmith points out, the early post-911 Bush is different from the later Bush. The reaction to the Bush terror policy is particularly strong with respect the early Bush and the assertion of unlimited and unilateral executive power to conduct an unending war on terror. But Bush was forced to backtrack as a consequence of a combination of setbacks from the Supreme Court, pushback from Congress, and negative opinion. So, the contrast between Obama and this early Bush, which is the Bush that caused the most consternation in the electorate, is in fact quite strong. Second, not all terror policies were salient with the electorate. For example, whereas left of center commentators in particular strongly opposed Bush's policy on torture and waterboarding, targeted killings was not so salient. Thus, the places where you'll see the strongest contrast between Obama and Bush are areas that were politically salient--interrogation, secret prisons, GITMO, rendition. Notwithstanding these differences, I think Goldsmith is generally correct that for the most part the substance of Obama's terror policies are similar to those of his predecessor.

What I find intriguing in all this is Cheney's warnings that once Obama is subject to the full information available to the previous administration, President Obama will have to make a choice: either continue Bush-era policies or put the security of the nation at-risk. The interesting question is whether Cheney's public efforts have succeed in making the Obama administration more conservative in its terrorism policy. It seems so.