Saturday, February 20, 2010

The Not-So-Popular Initiative

Yesterday, the Chief Justice of the California Supreme Court criticized the Popular Initiative process. According to Chief Justice Ronald George, the process leads only to paralysis.
The Popular Initiative is a constitutional device that Californians may lawfully invoke to amend their constitution. Californians have deployed the Popular Initiative to pass amendments with respect to taxation, spending, and most recently and notably, marriage.
Chief Justice George argues that authorizing citizens to change their constitution as they wish, when they wish, results in tying the hands of elected leaders, who are then faced with the task of abiding by those constitutional amendments while concurrently trying to find a way to manage the affairs of the state. This becomes particularly difficult, according to Chief Justice George, when amendments constrain what legislators can do with respect to fiscal management.
It looks like the Popular Initiative is not-so-popular in the view of at least one person in California.


  1. It seems, then, that the CA Chief Justice is only objecting to certain types of initiatives; namely, those having to do with fiscal issues, as opposed to constitutional type issues like the right to marry.

    Putting aside the point that even purely constitutional matters cost money as well (extending the right to marry to gays might burden the bureaucratic institutions granting permits, courts will be more burdened in cases of divorce, etc.), the complaint seems to be the classical debate between those supporting some measure of direct democracy vs. those preferring a more entrenched representative democracy.

  2. It might be interesting to note that Article 79 of the Constitution of Uruguay (which is the Latin American country which has experimented the most with different mechanisms of direct democracy), prohibits the use of the popular initiative for matters related to taxation. The original version of the provision is the following:

    Artículo 79: "El veinticinco por ciento del total de inscriptos habilitados para votar, podrá interponer, dentro del año de su promulgación, el recurso de referéndum contra las leyes y ejercer el derecho de iniciativa ante el Poder Legislativo. Estos institutos no son aplicables con respecto a las leyes que establezcan tributos."

  3. I think you're right, Adam. There are very real and everpresent dangers with direct democracy but I think we may need to think more about what we surrender when we divest citizens of the power of constitutional amendment.

    One solution may be to look to the Constitution of Uruguay. (Thanks Joel.) Perhaps we should hold that as a model to be considered--a model that would not tie the hands of legislators/executives faced with the task of balancing a budget, while at the same time keeping open for the citizens the possibility of constitutional amendment for other matters.

    Any debate about the merits and demerits of this model would have to consider whether or not it is possible to make a meaningful distinction between direct democracy with respect to taxation/spending and direct democracy with regard to rights/liberties.


Website Tracker