NaBloPoMo Day Thirteen:
Take My Initiative, Please

In response to my post yesterday, Proposition 8: Be the Change, in which I asserted my view that the California initiative process is flawed, my dear old law-school buddy, who goes by the name Last Place Finisher in the Blogosphere, ended his comment by asking:

Do we need an initiative to fix initiatives?

To answer that question I responded with a hearty “heh” or two, and I said some other stuff. I would also add the following about voter initiatives in general, and Proposition 8 in particular:

Power to the people is hardly revolutionary and is important part of democratic self-government. However, James Madison and Alexander Hamilton pointed out that pure democracy would produce a tyranny of the majority, and only representative government could both implement the people’s will and filter out the passions and prejudices of majority factions. It is obvious that the importance of having some form of direct democracy is sometimes at odds with the having a representative government intended to protect individual interests. The remedy for this dichotomy is in the proper structure of government, according to Madison and others. The principles of direct democracy versus representative government are balanced between the powers of the state and federal government, and checked through the legislative and judicial branches of each.

For example, the federal government has no mechanism for lawmaking directly by the people. Any change in positive law must come through Congress, or in the case of a constitutional amendment, in state legislatures or conventions. However, in about half of the states, including California, direct legislation through popular vote is allowed. The initiative process in California has been described by some constitutional scholars as one that is on the liberal side of the direct-democracy spectrum. In any event, while the scholarly debate about whether and how it might be overhauled is not a new subject, the passing of Proposition 8 has highlighted the need to examine the problems with California’s initiative process more closely and make changes more immediately.

Meanwhile, courts must fulfill their purpose in our system of checks and balances. In this case, the California Supreme Court must decide whether Proposition 8 violates the state constitution, procedurally and substantively. In my humble opinion, it does. On the federal level, the U.S. Supreme Court must eventually decide the issue of whether denying state licenses to same-sex marriage partners is a violation of the equal protection clause of the U.S. Constitution. In my humble opinion, it is.

Although we cannot take away the flaws in the California voter initiative process overnight, we can take the initiative to effectuate change in another and more immediate way. We can Join the Impact and be a part of nationwide protest against Proposition 8 on Saturday, November 15.

National Protest Against Prop 8



Join the Impact!

For information about the nationwide protest in your city: CLICK HERE

If you cannot participate on Saturday, you can still help by spreading the word on your blogs, Facebook, and through Google and Yahoo groups.

For Facebook: CLICK HERE

For badges for websites and blogs: CLICK HERE

Readers, are you in?

8 comments on “Take My Initiative, Please”

  1. this whole situation is just insane! how is it that in a country where you can ‘freely’ have guns (which kill people) you cannot ‘freely’ marry who you want (where you show your love)!

    Whatever happened to that great saying; make love, not war!???

  2. Solutions to initiative problems have been generally agreed on and available for many decades. But legislators NEVER improve the process, only make it harder (not affecting the wealthy much) and hobbling it in various ways (this year, with AZ Prop. 105 and CO Ref. O, both wisely defeated by voters).

    Voters on ballot initiatives need what legislators get: public hearings, expert testimony, amendments, reports, etc. The best project for such deliberative process is the National Initiative for Democracy, led by former Sen. Mike Gravel: http://Vote.org. Also http://healthydemocracyoregon.org/ and http://cirwa.org

    In Switzerland, petitions are left at government offices and stores for people to read and sign at leisure, so there are less aggressive petitioners, more informed signers, and less $ required. The Swiss vote on initiatives 3-7 times a year so there’s never too many on one ballot. Because they have real power, the Swiss read more newspapers/capita than anyone else.

    In Switzerland, representatives are humbler and more representative after centuries of local and cantonal (state) ballot initiatives, and national initiatives since 1891. They call their system “co-determination.” This works for all relationships!

  3. I’m sitting here in East Texas, jet-lagged, having dealt with elderly mom issues, and having drunk a couple of shots of single malt scotch.

    So – I may be an unreliable commenter!

    But – I took a Poli-Sci class a couple years ago with a great CalState prof, and – you’re basically right. The Initiative process in CA was created at a time when the corporations, mainly the Railroads, controlled the political process, and it was designed to get us out from under their yoke. Now, it’s all been subverted so that any big-moneyed interest who wants to can come in an alter our state Constitution, with a simple majority. It ain’t right, but we gotta figure out how to fix it without handing another plum to the folks with big dough.

  4. It is my humble opinion that our founding fathers foresaw things like Prop 8 and wanted to prevent those things.

    Never, ever, ever should the majority be able to tromp the rights of the individual. Never, ever, ever.

    So, yeah, I’m with you.

  5. I’m gone for a week and look what you’ve been up to!

    Wow. “We the people” are interesting to observe. We don’t have a similar provision in Canadian customs or conventions (which tend to follow UK customs & conventions due to our prior colony status).

    I actually had a student in my class who looked at the US Constitution and presumed the reference to “people” included aliens!

    I told them this constitutional joke that was told to me by Donna Greschner who is currently teaching at a California law school (our loss, your gain): the right to bear arms is a result of this scenario: the US Constitutional founders were busy drafting the US Constitution on a hot day. Of course they were wearing woolen garments and it was perceived impolite to be without them. It was so hot in the discussion room, someone asked, “is it all right to bear our arms?” and so it was…

    Now I’m off to find that blog you recommended about hating law school…

    Incidentally, Greschner wrote an interesting article about equality rights in the US from a Canadian perspective. I’ll look for the citation for you if you are interested.

  6. Thanks for reminding me about the process- one forgets these things in the midst of emotional turmoil.

    In response to Evan- I think the Swiss carefully observed America’s many social failures and worked hard to avoid them. Maybe I should go live there? Oh, wait, no. That would mean I was giving it America up to the moronic majority. (Did I say that?)

Lurkers are welcome. Commenters are welcomer.