While conflicts between our three branches of government over constitutional issues usually occur at the federal level, there is a profound debate happening almost under the radar over state constitutional authority in California. The case deserves our attention as the results could weaken the republican form of government for a generation to come.
Beltway pundits are licking their chops over President Obama's showdown with the House of Representatives as to whether or not the executive branch can act unilaterally in deciding how to enforce the Affordable Care Act as well as our immigration laws. Both sides have floated, and then backed away from, the idea that the dispute could end up in an impeachment process. Given Democratic control of the Senate, it's clear that impeachment talk is largely symbolic, as were the 54 votes in the House of Representatives to repeal Obamacare.
Symbolic battles are important. They provide a way for elected officials to present their differences of opinion directly to the electorate. If House Republicans want to turn the 2014 elections into a referendum on Obamacare, that is legitimate politics even if it won't result in immediate policymaking. Likewise, if the President wants to turn the 2014 elections into a referendum on immigration policy, that's a legitimate attempt to break gridlock in Congress by elevating an issue directly to voters to weigh in on. If he's willing to risk impeachment over this, more power to him.
While elites on both sides are preparing this proxy battle of issues for the fall elections at the federal level, the idea of voters directly weighing in about a specific issue is being threatened in California. The California Supreme Court is considering whether to remove a question from this November's ballot instructing Congress to overturn the U.S. Supreme Court's ruling in Citizens United v. FEC with a constitutional amendment.
The California legislature has passed legislation to place Proposition 49 in this November's ballot. It reads, in full:
Shall the Congress of the United States propose, and the California Legislature ratify, an amendment or amendments to the United States Constitution to overturn Citizens United v. Federal Election Commission, and other applicable judicial precedents, to allow the full regulation or limitation of campaign contributions and spending, to ensure that all citizens, regardless of wealth, may express their views to one another, and to make clear that the rights protected by the United States Constitution are the rights of natural persons only?
The practice of voters directly instructing their elected representatives was widely used during the founding period of the United States. Colonists gathered in town meetings to both elect representatives to legislative assemblies but also direct those representatives on certain positions to take.
The preamble of instructions from Boston to its representatives in 1764 demonstrates how colonists viewed this process:
We, the freeholders of the town, have delegated you the power of acting in our public concerns, in general as your prudence shall direct you, reserving to ourselves the constitutional right of expressing our minds and giving you such instructions upon important subjects as at any time we may judge proper.
Most of the delegates at the first Continental Congress of 1774 were sent with instructions from their respective states. After the Boston Tea Party and other conflicts with England, at least nine of the 13 colonies responded by instructing their delegates to the Continental Congress to declare independence. Constituent instructions guided delegates in drafting of the Articles of Confederation, the Philadelphia convention that drafted the U.S. Constitution, and Congress when it proposed the Bill of Rights.
The use of instructions, also known as "enjoining" a representative, was specifically contemplated as a means of amending the Constitution by its framers. John Dickinson of Delaware defended Article V during ratification debates by noting that the Constitution could be amended as a result of instructions:
Thus, by a gradual progress, we may from time to time introduce every improvement in our constitution, that shall be suitable to our situation. For this purpose, it may perhaps be advisable, for every state, as it sees occasion, to form with the utmost deliberation, drafts of alterations respectively required by them, and to enjoin their representatives, to employ every proper method to obtain a ratification.
Early Americans used constituent instructions to bring about a constitutional amendment to reverse a Supreme Court decision they felt overstepped its bounds, just as most Americans feel about today's court and Citizens United. Just weeks after the 1793 Chisolm v Georgia decision, arguably the Court's first major ruling which found that federal courts had jurisdiction to hear disputes between private citizens and the states, legislators in Connecticut, Massachusetts, North Carolina and Virginia instructed their U.S. Senators to seek passage of a constitutional amendment to deny federal courts jurisdiction when citizens sued other states. Congress complied with these instructions and proposed the 11th Amendment, which the states quickly ratified.
The 12th Amendment, dealing with presidential and vice presidential elections, was also prompted by instructions from Massachusetts, New Hampshire, New York, and Vermont. During this time period, as voters were no longer directly assembling to elect members of Congress and instead using ballots and regular elections, instructions usually took the form of state legislatures instructing their U.S. Senators.
Unlike a public opinion poll, which can be skewed in its working and presents no opportunity for opposing viewpoints, an election provides a structured format for citizens to speak collectively. Unlike the citizens' initiative process where voters directly enact legislation, voter instructions embrace representative democracy by giving simple directives to elected officials and leaving to them the details of implementing the policy.
Instructions have never been legally binding upon representatives and the first Congress rejected a provision in what would have become the First Amendment to make them legally binding primarily because of difficulties in enforcing this. For instance, members questioned whether or not a legislator's vote would still count if they violated their instructions, or whether or not they would be subject to immediate recall. Moreover, the Framers realized that the right to petition our government provided adequate protection for voters to instruct legislators and they could not contemplate a world in which representatives would fail to honor those instructions. Two future presidents, John Quincy Adams and John Tyler resigned from the Senate when their personal views conflicted with instructions they received from their state legislatures.
Defenders of the Citizens United ruling, believing that unlimited campaign spending is free speech, are now seeking to prevent California voters from instructing their congressional delegation to act -- precisely as Founding Father John Dickinson had promised voters they would be able to do if the Constitution was ratified. Rather than debating the issue of Citizens United on its merits, opponents want to silence this public debate and set a legal precedent that would forever remove the tool of voter instructions from California.
The California Constitution is crystal clear that the Legislature may pass statutes that call elections, which is what the Legislature did in referring Prop 49 to the ballot. Article IV, Section 8, of the California Constitution specifically notes that "statues calling elections, statutes providing for tax levies or appropriations for the usual current expenses of the State, and urgency statutes shall go into effect immediately upon their enactment.
We can be certain that the Framers of the California Constitution had precisely the type of election called by Proposition 49 in mind when they wrote that into the Constitution in 1879. That's because just 12 years later, the Legislature placed a very similar voter instruction question onto the ballot, asking voters if they wanted to directly elect U.S. Senators. Voters said yes, and instruction measures such as California's played an important role in the passage of the 17th Amendment which provided for direct election of our U.S. Senators.
Many citizens and legislators believe that the US Supreme Court overstepped its bounds in Citizens United and similar rulings. Reasonable people can disagree about that. In a republican form of self-government, we have agreed to settle these disagreements through our Constitution, and through its amendment process as a way for We the People to act as the ultimate arbiter between the legislative, executive, and judicial branches.
If the judicial branch of California violates this basic principle of self-government, a principle that was central to the drafting and ratification of our federal constitution, that is truly a constitutional crisis with more profound implications than our current skirmishes over health care and immigration policy.
Benjamin Franklin told us after the Philadelphia convention that the Framers had given us "A republic, if you can keep it." The California Supreme Court's decision, and perhaps more importantly our response to it, may put Franklin's challenge to the test.