Sunday, May 31, 2009

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?

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