Should the California Constitution Be Revised?

The California Republic is a laboratory of styles, ideas and laws, and the constitutional crisis rocking this powerful state, known for its strong sense of invention, has been noticed by the entire world. Because, at over 131 years old, the current constitution of California and its 512 amendments suffer from being overweight, which prevents the government from governing and the legislators from legislating, from deciding on a budget, from raising taxes. Some blame this paralysis on fiscal rules, and on an excess of direct democracy brought by the popular initiatives written into amendments.

The current constitution (the second one in California) was already verbose and voluminous when it was ratified in 1879,¹ with a text four times longer than the federal Constitution. But with the practice of constitutional initiatives, Californians can put on the ballot, in each election, proposals for laws that will be written into the constitution if they win a majority of the votes. And indeed, they do enjoy playing the role of legislators and drawing up their own laws! Plus it is relatively simple to get an initiative on the ballot: The petition presented to the secretary of state must be signed by 5 percent of the voters who voted in the last gubernatorial election in order to include a bill, and 8 percent in the case of a constitutional amendment (around 700,000 signatures).

From amendment to amendment, the already clogged text of 1879 has grown excessively, now with almost 400 pages and close to 75,000 words. And new additions are expected in 2010, at the June election and especially in November, when the voters (who will choose a new governor) will also give their opinion on new initiatives, like Prop 19, which would legalize and tax marijuana, or Prop 23, which “suspends implementation of air pollution control law … until unemployment drops to 5.5 percent. …”

Inspired by the Swiss referendum system, the practice of popular initiatives was introduced in 1911 by the reformist governor Hiram Johnson, in order to give real legislative power to the base (the notion of “grass roots” in English). But the initiatives have been largely used and diverted by special interest and pressure groups, known as “lobbies.” Used moderately until World War II, the initiatives have been more frequent since 1960. Moreover, the number and length of those propositions compel the California voters to read and study a voter information guide as complex as a bill of law, which makes the exercise of voting almost forbidding, even for informed citizens (the Nov. 2, 2010, election guide is 120 pages long, with five propositions qualifying as constitutional amendments). Too much direct democracy can also keep many voters away from the ballot box.

In comparison with the California Constitution, the federal Constitution of the United States, ratified in 1787² with its seven articles, followed by the first ten amendments (known as the Bill of Rights³) ratified in 1791, has merely 1,500 words, and the text has only been amended 27 times in 223 years, the last time being in 1992. The Founding Fathers had at least protected their text from being amended too easily. Today, the corpulence of the California Constitution is often mentioned as the principal cause for the state’s budget crisis and dysfunctions.

Actor Arnold Schwarzenegger, elected governor in October 2003, has himself confronted the political system in Sacramento, which he had sworn to renovate, in language worthy of “The Terminator.” At the end of his term, he has spoken in favor of renovating the institutions, but he wishes to first give elected representatives a chance. He declared on Monday, Jan. 25 to the Press Club in Sacramento, “We should go and give them [the legislators] a chance, that they can fix it. … But if they can’t do it, then I think they should go to the ballot and that they should go directly to the people and we should have then a constitutional convention.” Governor Schwarzenegger, who will leave his post at the end of 2010 and cannot run for a third mandate, wonders, with reason: “And so the question is just more about the will, does the will exist to make those kind of changes that we need?”

Indeed, the determination, the personality and political orientation of the next governor of California elected in November will weigh a lot on the fate of a constitutional revision. Will the candidates to his succession — the Democrat Jerry Brown (former governor of California from 1975 to 1983,⁴ current Attorney General), or Meg Whitman (former CEO of eBay, the online auction website), be favorable to revisions and, if so, which ones? During the last financial crisis in the ’90s, a revision committee had put forth a series of recommendations that included an extension of term limits, the creation of an emergency rainy day fund for crises, a restriction on referendum proposals and a softening of fiscal laws. But the California Congress did nothing about it as the financial crisis faded away.

Today, the movement to revise the constitution has more backing, and a majority of Californians feel that their political institutions and their constitution are dysfunctional. Historian Kevin Starr,⁵ author of “California: A History,” talks of a “failed state” — the first state to go bankrupt in America. According to a poll published in October 2009 by the Field (California) Poll — an independent institute in San Francisco surveying California public opinion since 1947, 51 percent of voters feel that some “fundamental changes” must be brought to the constitution, 38 percent disagree.⁶ However, 51 percent prefer a constitutional convention to a parliamentary review commission, and a third of the voters say they are ready to serve as delegates at this convention.

On the other hand, if a consensus exists on the necessity for change, no one agrees on the ways and means. Must the provisions that no longer work be simply revised bit by bit, or must one be more radical and more comprehensive, and draft an entirely new constitution, better adapted to the management of a modern state? Should all successive amendments be scratched, or should one just moderate, from now on, the enthusiasm of the inhabitants of the Golden State to substitute themselves for their legislators and constantly amend their constitution?

The constitution itself defines the revision process. A commission for revision must be formed, which calls for a constitutional convention. Five times in the past, the California Congress has asked the voters if they wanted to revise their constitution. They have responded in the affirmative once, during the Great Depression, but the delegates did not take it into account, and no revision took place. It would thus be the first fundamental revision taking place since 1879, and a real legislative earthquake, because the architecture of the constitution and its consecutive amendments is delicate to alter. And even the citizens now barely satisfied with the constitution, fear to see their favorite clauses repealed.

Drafting a new text tailored to a state as diversified and disparate will surely be a particularly acrobatic exercise. To repeal all the amendments that weigh it down would spark some revolts within certain categories of citizens. Try to alter Proposition 13, an initiative adopted in June 1978, which caps real estate taxes at 1 percent of the value of the property, and all the owners would take to the streets! In a poll led by the Field (California) Poll⁷ in October 2009, 69 percent of the voters oppose an amendment to Prop 13 that would allow Congress to increase property taxes (and only 27 percent support such an increase). Prop 13, by far the most well-known popular initiative, limits the capacity of local governments to collect taxes, and has opened the path to a series of costly financial amendments, accused of making California ungovernable in the space of thirty years. In effect, 7 percent of the state’s annual budget is already allocated by the voters and not the legislators in Sacramento, meaning that special interest groups have taken partial control of public expenditures with, for example, some measures assigning lottery profits to Indian tribes, recalculating public school financing and allocating permanent funds for special programs in the health sector and in education.

The California Constitution was born during the Gold Rush, before California became, on Sept. 9, 1850, the 31st state of the union.⁸ Its first constitutional convention, composed of 48 delegates (including seven native Californians and eight born outside of the United States), assembled between September and November 1849 at Colton Hall in Monterey — a locality south of San Francisco next to the Pacific Ocean, and the first headquarters of the young California republic. This first constitution, published in English and in Spanish, was ratified by popular vote Nov. 13, 1849, and reflects the double origins of the Golden State, both Hispanic and Anglo-Saxon — Article XI stipulating that all laws be translated into Spanish, a provision that was subsequently dropped.

A second constitutional convention of 152 delegates convened in the new capital of Sacramento and drafted a new constitution, ratified on May 7, 1879, which is still in force today. In those days, this text, solely written in English, was already considered as particularly verbose, talkative and among the longest constitutions in the world, along with those of India and of the American state of Alabama. It was marked with suspicion toward elected legislators and defines, as early as Article 2 on Voting, Initiative, Referendum and Recall: “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.”⁹

Since 1911, popular initiatives have weighed the constitution down. In some elections, several initiatives tackling the same, sometimes contradictory, questions are submitted. Section 8[a] of Article 2 states: “The initiative is the power of the electors to propose statutes and amendments to the constitution and to adopt or reject them.” The text protects the popular initiative and stipulates that a law adopted by referendum can be nullified or modified only by another popular vote, and not by the legislators in Sacramento. This constitutional protection of popular initiatives is specific to California.

This constitution originally defended civil liberties that aren’t explicitly protected by the federal Constitution. Among the differences: Article 1 proclaims the inalienable rights of all the residents (even foreigners) to acquire and protect their property. This same article affirms the liberty of expression: “Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.” In California, the members of the media cannot be prosecuted if they refuse to reveal confidential sources. Other measures defend religious liberty and outlaw sexual discrimination; protect the marine resources, but also the public right to fish and to hunt in the water and public lands; legalize the research of stem cells; regulate government agencies and registration fees on vehicles, etc. Reformers think that some amendments are simply “crazy,” and advocate a simplified text.

What’s wrong with the constitution? This unique text engenders some serious governance problems and the Golden State has become synonymous with economic and political failure. Effectively, California is one of three American states to require a “supermajority” of two-thirds in order to pass a budget, one of 16 States to require the same supermajority to raise taxes — and the only one to combine both requirements! A uniqueness that gives the minority in the California Congress the right to veto all decisions and all legislation. The minority has the power of total blockage, whatever party is in place (in this case the Republicans, since the Congress in Sacramento has a Democratic majority).

In a new book,¹⁰ “California Crackup: How Reform Broke the Golden State and How We Can Fix It,” Mark Paul and Joe Mathews recommend a number of rational measures to save the political system: elimination of the supermajority and a reform of direct democracy. “Typically in a democracy, once you have a majority, they should be able to govern!”* comments Mark Paul, who was deputy treasurer for the state of California, and works with the New America Foundation, an independent think tank very involved in the current debate on structural reforms. “But in our case, the party that has been elected and the one that voters rejected have to agree, which is truly very difficult. California doesn’t function, because it can’t function.”* Adding, “California has the most powerful — and thus the most inflexible initiative process in the world.”

The amendment adopted in 1990, limiting terms to six years in the House (three, two–year terms), and eight years in the Senate (two, four–year terms), is also very much debated. Even in California where term limits were first implemented to dissuade career politicians and to renew the elected officials more often, we meditate on the harmful consequences of those limits, because term limits send some inexperienced representatives to Congress, discard qualified public officials and thus deprive the state of precious human resources. A liberalization of those limits would be a good idea, but how? Since a referendum proposition can repeal a previous one, a group of citizens, in February 2008, proposed an initiative softening term limits, which was rejected by the voters. The only way to reform term limits would be by constitutional revision.

The movement in favor of this revision has already been launched in California, by civic associations and think tanks, starting with Repair California,¹¹ the emanation of the Bay Area Council, an association of decision makers and businesses like Google, Yahoo!, Hewlett Packard, Wells Fargo, United Airlines and Chevron; or California Forward,¹² a nonpartisan reform group financed by some large foundations; the League of Women Voters of California; civic organizations like Common Cause¹³ and the Mexican-American Political Association.¹⁴ On Aug. 1, 2009, all of these reformers who want to save California met in a library in Mission Valley, where they played out the first act of the revision of the California Constitution in a charged atmosphere. For Jim Wunderman, CEO of the Bay Area Council, “The seriousness of the problem has reached a crescendo. The public is making a statement, loud and clear, that they expect action.”

Reformers have the support of many California newspapers, like the San Francisco Chronicle and the Los Angeles Times, affirming in a recent editorial,¹⁵ “California Needs a State Constitutional Convention”: “California is stuck. Schools are about to lay off teachers. Prisons are about to release inmates. Historic assets are on the block. Initiatives confuse. Revolts fail. No amount of electing and reelecting people who promise to fix things seems able to move us forward. It’s time to reboot,” concludes the editorial, using a hip word, since reboot means restarting the hard disk on a computer.

A majority of Californians agree that the constitution must be revised and the machine restarted, but they don’t know “how” or “by whom.” This new text could integrate some of the most popular provisions in California, but also the most controversial and the most polarizing. For example, the definition of marriage that has dominated the news since same-sex marriage was banned in November 2008. A number of voters will reject a revised constitution allowing for marriage equality, while defenders of gay marriage would disagree with a constitution denying marriage rights to same-sex couples. Other subjects cause controversies like abortion rights, social services for illegal immigrants, or even affirmative action, a system of quotas that favors access to minorities, which is perceived by its detractors as a reverse form of discrimination. In the battle for a new constitution, extremists might confront each other: As in the days of Proposition 187,¹⁶ conservatives will argue against providing social and education services to illegal immigrants, while some more liberal elements will try to prohibit offshore drilling and the use of nuclear energy.

How to Revise?

The process for revision, defined by Article 18,¹⁷ is itself complex. The California Congress, by a majority vote in the House and in the Senate, can start the process of revising the constitution and pose the question of a constitutional convention to the voters. If they agree, members of Congress call a convention within six months, with delegates proportionally elected from their districts. But, as if it is not enough to revise the constitution, some reformers go as far as planning to change the modes of revision themselves. And the ideas are proliferative! The independent think tank Repair California has imagined a method of selecting delegates to the constitutional convention that would escape the influence and financing of lobbies. The citizen delegates, who would be compensated like parliamentary members, should be representative of the population, and not elected as mandated by the constitution. So half of this group of delegates would have to be women, and more than half would be blacks, Asians and Latinos. Other reformers go further and suggest that every delegate be chosen at random. And that they should be given freedom to invent: like get rid of one of the houses, convene Congress only half the year, limit the scope of referendums …

A new constitution should make the government accountable in the long term and create a rainy day fund. And it should learn from past errors when California, enriched by the boom of Silicon Valley and the real estate sector, spent without counting and now finds itself on the brink of bankruptcy. A state that offered one of the best educational systems in the world is no longer able to provide public services, from education to justice, even the upkeep of parks. In short, the new constitution should introduce the notion of accountability and long-term budget planning.

But it will be a long haul! Raised on and now addicted to direct democracy, Californians have a lot of confidence in their talent to write laws, and they don’t like the idea that this hobby could be taken away from them. The debate around popular initiatives is thus central, especially since the Golden State is the precursor of trends in the legislative and legal areas. Electoral campaigns around those proposed amendments advance the debates of society, and maybe more efficiently and more openly than some parliamentary debates.

The best example is Proposition 8 in 2008, which banned gay marriage in California and started a national and international debate on marriage rights for same–sex couples. A debate revived on the legal scene, since two homosexual couples, questioning the constitutionality of this amendment, have sued the state of California, in particular, its governor.¹⁸ The trial opened in a federal courtroom in San Francisco on Jan. 11, 2010, and after Judge Vaughn R. Walker ruled, on August 4, that Proposition 8 was unconstitutional, its proponents have filed an appeal, and the issue of gay marriage will finally go all the way to the Supreme Court of the United States, and be argued in public. In the debate on revising the constitution, defenders of direct democracy in California will protect the right of citizens to interfere and will mention the role played by Proposition 8 in the debate on the constitutional rights to marriage equality. “California needs a more democratic political system, more flexible and more responsible,”* concludes Mark Paul, co-author of California Crackup,¹⁹ who believes in the emerging movement toward changing the California Constitution: “The year 2010 can be as important for our century as the year 1910 and the progressives were during the previous century.”* The next decade will be a long discussion, and maybe will see some lively democratic exchanges of words, around the seminal text of the republic of California.

1. Constitution of the State of California, adopted May 7, 1879.

2. The Constitution of the United States was ratified on September 17, 1787.

3. The Second Amendment of the Bill of Rights, which gives people the right to bear arms, is one of the most often quoted.

4. Jerry Brown, governor of California from 1975 to 1983, can run for a third mandate because the term limits voted in 1990 are not retroactive. But Arnold Schwarzenegger, elected governor in 2003, can serve only two terms.

5. Kevin Starr, “California, A History,” Modern Library Chronicles, Random House, 2005.

6. The Field (California) Poll, State Constitutional Reform and Related Issues, poll completed between Sept. 18 and Oct. 5, 2009, by telephone in English and Spanish, on a sample of 1,005 registered voters.

7. Ibid.

8. CALIFORNIA CONSTITUTION, ARTICLE 2, VOTING, INITIATIVE AND REFERENDUM, AND RECALL. SECTION 1: 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.

9. CALIFORNIA CONSTITUTION, ARTICLE 2, SEC. 8.(a): The initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them.

10. Mark Paul and Joe Mathews, “California Crackup: How Reform Broke the Golden State and How We Can Fix It,” University of California Press, June 2010.

11. Repair California: http://www.repaircalifornia.org.

12. California Forward: http://www.caforward.org.

13. Common Cause is a nonpartisan organization founded in 1970 to make American political institutions more open and more responsible.

14. The Mexican-American Political Association is an organization for civil rights created in April 1960 in order to encourage the election of Americans of Mexican origins.

15. Editorial from the Los Angeles Times, “California Needs a State Constitutional Convention,” May 21, 2009.

16. Proposition 187, adopted by California voters in November 1994, denied social, medical and educational services to illegal immigrants, but was later ruled unconstitutional.

17. CALIFORNIA CONSTITUTION, ARTICLE 18, AMENDING AND REVISING THE CONSTITUTION.

18. Kristin Perry and Sandy Stier, Jeff and Paul Katami Zarillo, plaintiffs in the case Perry v. Schwarzenegger, U.S. District Court in San Francisco.

19. Mark Paul and Joe Mathews, “California Crackup: How Reform Broke the Golden State and How We Can Fix It,” University of California Press, June 2010.

*Editor’s Note: Unable to verify these quotes.

Note: This article is published with the express permission of Claudine Mulard.

©2010 Claudine Mulard