STATE NEWS ‘mdash; The proposition that just won’t die ‘mdash; good ol’ number eight ‘mdash; has found its way into the limelight of the California Supreme Court. But the debate over the amendment’s constitutionality and its limits on individual rights has created a conundrum with one clear solution: We need to overhaul California’s proposition process.
On March 5, the California Supreme Court heard oral arguments for and against Proposition 8 ‘mdash; which defines marriage as a union between a man and a woman ‘mdash; while student protestors joined thousands lobbying outside the courthouse for the proposition’s repeal. Though the court has 90 days to make a ruling, it’s likely the constitutional amendment will remain intact, alongside hundreds of previous changes to the California Constitution.
California voters change the Constitution far too easily, allowing laws to dodge the Legislature and to be uncommonly protected from the court’s judgment through precedence. However, with a few changes, we can protect ourselves from both frivolous legalities and blatant legal abuses.
The Golden State has approved more than 500 constitutional revisions in its history, compared to 27 nationally. Articles in the state constitution include provisions allowing citizens to fish on government property and judges to work second jobs as educators. The latest amendment ‘mdash; more suited for an out-of-date dictionary ‘mdash; scoffs at equality.
California is one of 17 states with an initiative process that allows citizens to draft either statutes, which are standard laws, or constitutional amendments. Constitutional revision is reserved for proposal by the California Legislature.
It is ridiculously easy to amend the state constitution. The only difference between proposing a statute and a constitutional amendment is a few signatures. A statute must be backed by 5 percent of the voter pool and only 8 percent of eligible voters must petition a constitutional amendment.
Approving an amendment proposed by any individual or interest group requires a simple majority: 50 percent plus one vote. The amendment is effective immediately without going to the Assembly or Senate. If legislators, on the other hand, wish to propose an amendment or revision, two-thirds of each chamber must approve the proposition before it reaches the ballot. We allow voters to bypass the people they have trusted to govern. Essentially, legislators’ positions are nullified through an illogical institution that allows voters to thrust any law that might not necessarily pass a legislative review upon the constitution.
Change to the U.S. Constitution requires a three-quarter approval from both houses. The process is deliberately difficult to prevent inconsistencies and legal abuses that infringe upon equality. That process creates stability, and California should adopt similarly strenuous guidelines. The state needs to adopt the three-quarter rule and apply it to changes proposed by the voters as well.
Additionally, the state should implement a process for court review of proposed amendments. Proposition 8 bypassed a May 2008 Supreme Court ruling overturning Proposition 22, which passed in 2000 and similarly defined marriage as strictly between a man and woman. In its ruling the court said, ‘Retaining the designation of marriage exclusively for opposite-sex couples … may well have the effect of perpetuating a more general premise ‘mdash; now emphatically rejected by this state ‘mdash; that gay individuals and same-sex couples are in some respects ‘second-class citizens.”
Contrary to their first ruling, justices seem reluctant to overturn the voters’ most recent marriage-defining decision. Whereas Proposition 22 was approved by 62 percent of voters, Proposition 8 only passed with a 52 percent majority. The court is cooing precedence and is reluctant to nullify a constitutional amendment, essentially defending the Californian citizen’s authority to redraft the constitution.
The California Supreme Court is comfortable overturning a statute contradictory to the constitution ‘mdash; such as the original defense of marriage, Proposition 22 ‘mdash; but reluctant to rescind a similar passage in the constitution. The voters have successfully slid past constitutionally protected equal rights by rewriting the constitution in favor of a slim majority. This kind of action cannot stand.
The best argument against adhering to the court’s hands-off approach came from Kenneth Starr, the lawyer defending Proposition 8, who said ‘the people are sovereign, even if unwise, and they can tug at equality.’
Even the proposition’s legal counsel is aware of the system’s dangerous discrepancy, but rather than call for change, Starr is congratulating the loophole. He’s flaunting it. And it’s unlikely that any protections will be created without overhauling California’s amendment process.
The California Supreme Court has taken action in the past. In 1963, justices famously overturned Proposition 14, which would have allowed property owners, through the amendment’s vague language, to discriminate when renting or selling property.
Nevertheless, the Supreme Court’s reversal of a voter-approved amendment is rare and the precedence for a hands-off approach is clear. This needn’t be the case. The court should have a more active role in ensuring that freedoms and rights are upheld, and should keep mob rule in check.
California’s initiative process has been used to propose alcohol prohibition in 1914, provide preferences for veterans in 1934 and establish English as the official state language in 1986.
Out of the 13 amendment propositions on the 2008 ballot, three passed in November: Proposition 9, a convoluted amendment purporting victim’s rights over those of the accused; Proposition 11, which structured committee guidelines for political redistricting; and Proposition 8. Changes must be made so these matters, strictly (or not so strictly) legal and not constitutional, are properly addressed.
First lawmakers must commission a constitutional review. Although several have been implemented in the past, this time we need a purge. Unnecessary passages must be relegated to standard law, and contradictory passages should be scrapped.
For instance, ‘only marriage between a man and a woman is valid or recognized in California,’ follows, ‘a citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens.’ Seriously, this is absurd and hardly justifies pointing out the obvious conflict. The laws dictating changes to the U.S. Constitution should be applied to both the California Legislature and the electorate, and a rotational system of judicial review should be enacted to prevent the unwise from ‘tugging at equality.’
As amendment and revision overkill bogs down the constitution, the lines between laws and constitutional rights blur. The constitution’s place is not to outline regulations over redistricting or to promote the state’s official language. It certainly isn’t the place to define marriage or give veterans a vague preference.
Checks and balances are at the foundation of our representational democracy system, but the California constitutional amendment process contains few checks and even fewer balances. California is more akin to a direct democracy in regard to the initiative process, going against the principles of our state and nation.
Our democracy, contrary to popular argument, is not the great institution it is because of the majority’s right to create law, but because of its unequivocal protection of equality and individual freedom. With a stricter process for constitutional amendment and reform, these freedoms will be ensured.
Readers can contact David Harvey at [email protected].