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A constitutional convention isn't the only route to reform

California may well need one, but two voter initiatives proposed by Repair California raise several legal questions that must be considered.

November 03, 2009|By John S. Caragozian, Karl Manheim and Don Warner

The Times, in its “ California Fix” editorial series, has rightly argued for a fundamental reform of state government -- so fundamental, The Times feels, that the state needs a convention to rewrite its Constitution. The editorial board's most recent installment, “Closer to a constitutional convention,” focuses on two proposed initiatives for the 2010 ballot by Repair California. The first would amend the state Constitution to permit voters to call such a convention, and the second would actually call one.

The Repair California initiatives constitute a serious effort and will likely receive substantial support. Calling a convention by initiative, however, isn't so straightforward and raises several legal and policy questions. A court might hold that any such initiative would constitute an illegal "revision" of the state Constitution (the Proposition 8 case in the state Supreme Court earlier this year attempted to distinguish between a valid "amendment" and an invalid "revision" to the state Constitution). In addition, the initiative actually calling a convention has novel provisions governing the conduct and scope of the gathering. As is often the case, the devil is in the details.

Repair California proposes that about half of the convention delegates be selected randomly, using DMV lists, voter rolls and the like. The convention's other delegates would be appointed by local governments, although not entirely proportional to population. None of the delegates would be elected by popular vote, and none could be current officeholders.

This type of "citizen convention" will no doubt attract many voters as a way of avoiding the gridlock in Sacramento. On the other hand, perhaps it would not be very wise to exclude Californians with government experience from serving as delegates. Some may also question whether this selection process comports with federal voting laws.

Repair California's initiatives also purport to limit the scope of the issues to be considered by the convention. Mandated subjects would include elections (the convention is expressly invited to address campaign finance, initiatives and term limits) and voting thresholds for spending and budgeting. Off-limits are same-sex marriage, tax increases or decreases and any changes to Proposition 13, the Howard Jarvis property tax reform, or to Proposition 8.

We recognize that Repair California does not want to risk defeat of the initiatives by zealous supporters of Proposition 13 or Proposition 8. We are not entirely convinced, however, that any substantive limits on the power of the people in a constitutional convention can be effectively enforced. The original 13 states tried to limit the federal convention of 1787 to merely changing the Articles of Confederation; this limited scope was rejected by the delegates. That "runaway" Philadelphia convention produced the U.S. Constitution, which has endured and served us well for more than two centuries.

We expect many of the legal issues to get thrashed out in court, both before and after the November 2010 election, should any of the Repair California qualify for the ballot or pass. They are difficult issues, in part, because California voters themselves have never before organized a convention, a task that has previously been one for the Legislature.

Because we are now treading on new ground, all Californians need to pay close attention to these questions. Our future is at stake. Indifference or, alternatively, sound-bite simplicity may well doom the opportunity for the needed constitutional reforms.

Repair California itself has addressed this need by sponsoring a series of town hall meetings to discuss constitutional reform with the public; other groups have done the same. Here at Loyola Law School, Los Angeles, we along with several local groups are coordinating a high-level symposium to be held in the weeks before the 2010 election, in which journalists, scholars, elected officials and other leaders will discuss the political and legal practicalities of a constitutional convention and other reform options (go to for more information). We believe it is time to move the discussion from the general to the specific. The details of Repair California's initiatives, along with similar initiatives filed by other groups, should be carefully examined.

More than 70 initiatives have already been filed for placement on the 2010 general election ballot, many of which could result in profound changes to California law. This proliferation of initiatives suggests that Californians have lost faith in their government. Reform is in the air.

Whether reform should manifest as a constitutional convention or a narrower route is a matter to be debated and decided in the next 12 months. If a constitutional convention is called, it will be the first such effort in California in 130 years. Let us approach the issues cautiously and with studied care.

Karl Manheim is a constitutional law professor at Loyola Law School. John S. Caragozian and Don Warner are adjunct professors at Loyola who teach California legal history and U.S. constitutional history.

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