Forcing pro-life nonprofits to promote abortion is a shocking violation of the First Amendment.
At this year’s Transatlantic Law Forum, lawyers, academics, and other members of the scribal classes from both sides of the Atlantic gathered in Bayreuth, Germany to trade thoughts on the topic of democratic representation and its discontents. And its discontents are many, to judge from contemporary discourse. Representative institutions are not seeing their finest hour.
A consequence of the public’s lack of trust in political representatives has been the steady rise (and rise) of executive government at the predictable expense of representative government. But another steadily rising form of government, direct democracy, should command our attention. The rise of direct democracy—ballot initiatives, referenda, and recall elections—has similar origins and consequences.
The Essence of Mob Rule
Direct democracy was not always fashionable in the United States. The Framers equated direct democracy, at least in its “pure” form, with mob rule. In Federalist 10, for example, James Madison dismissed pure direct democracies as “spectacles of turbulence and contention,” “incompatible with personal security or the rights of property” and “as short in their lives as they have been violent in their deaths.” Alexander Hamilton argued that the “very character” of direct democracies “was tyranny; their figure, deformity.” Instead, the Framers advocated for a system of representative government with checks and balances that would restrain partisan and populist impulses and provide the stability necessary for a nascent commercial nation to flourish.
The U.S. Constitution reflects this view. The Constitution was ratified by state conventions, not, as is common today, by popular referendum. Article V, which sets out the procedures for amending the Constitution, contemplates no direct voter involvement. The Constitution contains no provision at all for popular plebiscites. Few democracies (if any) are so unabashedly representative as the United States.
At the state level, the picture looks very different. Largely as a result of populist reforms during the Progressive Era, 26 U.S. states today have so-called “hybrid” democracies that combine representative government with some form of direct democracy.
Direct democracy takes many forms in the states. Some states (like Maryland and New Mexico) have relatively tame forms of direct democracy known as the “veto referendum,” which allows voters to block unpopular laws. Texas merely allows voters to veto constitutional amendments proposed by the Texas legislature. At the other end of the spectrum, California allows voters to propose statutes and even amendments to California’s Constitution and to adopt or reject them by a majority vote, a form of direct democracy known as the popular ballot initiative. By allowing majorities to impose their will on the rest of the community without any checks and balances, this form of direct democracy comes closest to the “deformity” of the “pure” democracies abhorred by the Framers.
California’s Dubious Democracy
California’s century-old experiment with the ballot initiative has indeed been a spectacle of turbulence and contention. As the Economist magazine argues in a special report on the subject, California’s ballot initiative system has contributed to legal instability, inconsistent fiscal policies, legislative dysfunction, and interest group rent-seeking. Every election industry groups spend tens or even hundreds of millions in advertising and consultants in an attempt to stave off ill-conceived and self-interested proposals by rival interest groups and eccentric millionaires.
But California’s popular ballot initiative is not just a bad idea. It is also arguably unconstitutional.
Critics of California’s ballot initiative have often argued that the initiative violates the Guarantee Clause of the federal constitution, which requires the United States to “guarantee to every state . . . a Republican Form of Government.” Popular ballot initiatives, the argument goes, are not a republican form of government.
This argument is barred by controlling Supreme Court precedent. As Ryan Williams argues in an excellent Harvard Law Review article, the Guarantee Clause expresses a quasi-diplomatic political commitment by the federal government to secure the States against foreign invasions and domestic insurrections. It arguably imposes no judicially enforceable prohibition on the States, at least to the extent they formally retain a functioning legislature.
Scholars’ misplaced focus on the federal Guarantee Clause has detracted attention from the ballot initiative’s defects under California’s state constitution. California’s ballot initiative power, it seems, was arguably never constitutionally adopted in the first place.
In 1911, progressives swept the California legislature. Their constitutional “reform” program was almost single-mindedly focused on a single objective: taming the Southern Pacific Railroad’s power in California’s politics. To that end, the legislature proposed a constitutional amendment to create the ballot initiative, referendum, and recall powers (Proposition 7).
There was one legal problem with that proposal. Constitutional revisions could not be proposed by the legislature. Under Article XVIII of California’s Constitution of 1879, any constitutional change that “substantially alter[ed] the basic governmental framework” had to go through a special “revision” process that required calling a convention with the power to reconsider the entire constitution. See Table 1.
Table 1: Article XVIII of California’s Constitution of 1879
|The Legislature . . . two-thirds of the membership of each house concurring, may propose an amendment of the Constitution.”
– Art. XVIII Sec. 1
|“The Legislature . . . two-thirds of the membership of each house concurring, may submit at general election question of whether to call a convention to revise the Constitution.”
– Art XVIII Sec. 2.
|The proposed amendment must be adopted by a majority of votes.||The call for a convention must be ratified by a majority of votes.
The convention’s constitutional revision must be ratified by a majority of votes.
But the ballot initiative was proposed by the legislature as an ordinary seriatim amendment, not as a revision by a constitutional convention. That is significant, because if the ballot initiative power was a “revision,” it would follow that the ballot initiative was never properly proposed or adopted. The consequence would be that California’s Constitution gives voters no power to propose or adopt ballot initiatives, and every ballot initiative adopted since 1911 was void ab initio and not law.
The available case law supports the argument that the ballot initiative power was a revision.
Amendments versus Revisions
The Supreme Court of California first addressed the amendment/revision dichotomy in Livermore v. Waite (1894). In that case, the Court held that an amendment to change the location of the state capital from Sacramento to San Jose was an amendment, not a revision. In the course of its opinion, the Court observed that “[t]he legislature is not authorized to assume the function of a constitutional convention and propose for adoption by the people of a revision of the entire constitution under the form of an amendment.” Livermore thus made clear that any legislative attempt to reconsider the entire constitution would usurp the function of a convention.
The Supreme Court of California had several additional occasions to consider the line separating amendments from revisions during the 20th century, in large part because one of the few constraints on the ballot initiative is that voters may not use the initiative power to revise the Constitution. These cases make clear that constitutional changes that qualitatively alter “the fundamental governmental structure or the foundational powers of its branches” are revisions. To take some examples, an initiative amendment that purported to make Governor Jerry Brown a hereditary monarch would be struck down as an improper revision of California’s republican government. Similarly, an initiative that “purported to vest all judicial power in the Legislature would amount to a revision” of California’s tripartite system of government “without regard either to the length or complexity of the measure or the number of existing articles or sections affected by such change.”
Less radical initiatives have been held to be revisions. In Raven v. Deukmejian (1990), the Supreme Court of California struck down proposition 115 (the “Crime Victims Justice Reform Act”) as an unconstitutional revision. Prop 115 required the Supreme Court of California to construe certain specific constitutional rights applicable to criminal defendants no more broadly than the U.S. Supreme Court. The California Supreme Court observed that Prop 115 would “vest all judicial interpretive power, as to fundamental criminal defense rights, in the United States Supreme Court.” This, the Court held, would overturn the basic principle that “the [state] judiciary, from the very nature of its powers and means given it by the [state] Constitution, must possess the right to construe the [state] Constitution in the last resort.” Raven suggests that even partially vesting the basic powers of a constitutional branch of government elsewhere would constitute a revision.
Compare Prop 115 with Prop 7, which amended the Constitution in 1911 to create the initiative, referendum, and recall powers. Before Prop 7, the legislature was vested with exclusive authority over legislation, subject only to the Governor’s veto, and the legislature had the exclusive power to propose amendments. After Prop 7, the legislature shares these powers with the mass of voters. But while the legislature may only propose constitutional amendments with the concurrence of two-thirds of each house, Prop 7 allows voters practically unfettered discretion to propose amendments to California’s Constitution, subject only to a majority vote. This eviscerates a critical supermajority check that was meant to provide citizens with constitutional stability and security against the depredations of interest groups and the passing whims of political majorities. It also renders the legislature’s power to propose constitutional amendments a virtual nullity. Why bother when you can take an express lane to the voters through the ballot initiative?
These constitutional changes profoundly altered the nature of California’s Constitution and government. As the Supreme Court of California observed in Livermore, “the very term ‘constitution’ implies an instrument of a permanent and abiding nature, and the provisions contained therein for its revision indicate the will of the people that the underlying principles upon which it rests, as well as the substantial entirety of the instrument, shall be of a like permanent and abiding nature.” The ballot initiative has transformed the Constitution from a document of a “permanent and abiding nature” into a mutable, contemptible document that changes every election cycle in accord with the latest interest group demands, prevailing winds, and popular passions, outside of the institutional channels established by the original constitution. In short, Prop 7 arguably improperly revised California’s Constitution.
Go East, Young Man
I’m not entirely convinced by this constitutional argument, but compared to California’s politics, it’s an embodiment of good sense. In any event, California’s courts would never accept this argument after over a century of pretending the ballot initiative has legal force. The courts would refuse to unsettle what they’ve called the “precious right” of the people to propose and adopt ballot initiatives. For better or for worse, 1911 was a “constitutional moment” that irrevocably changed the character of California’s government. There is no going back to 1879.
Saving California’s representative government would require another constitutional moment that is nowhere in sight. Few if any Californians are ready to embrace an agenda based on more, instead of less, representative government. What are the bums good for? Why shouldn’t we the people get to decide? Those questions don’t have simple, intuitively persuasive answers.
Even if California’s representative government cannot be saved from democracy, there are some silver linings in a federal country.
First, California’s citizens can move eastward to Texas, as they are already doing in droves. In addition to lower taxes and better public services, Texas has no statewide ballot initiatives.
Second, other states can learn from California’s experience, and avoid extreme forms of direct democracy. To that end, I propose the MLC scale (More Like California) for assessing state direct democracy. At one end, stands California’s ballot initiative, whose figure is deformity. At the other end is Texas, which provides only a constitutional veto referendum. The more like California, the worse.