Every person accused of a crime is entitled to a defense. And, according to California elites across the political spectrum, so does every ballot initiative.
That’s the logic behind a veritable chorus of cries for some kind of law or initiative to fix what is widely seen in California as a problematic ruling by the U.S. Supreme Court in the Prop 8 case. The court reaffirmed the status quo that one has to have an injury to bring a challenge in the federal courts, and the official proponents of Prop 8 had no injury.
But that restatement of the status quo is broadly seen as some new attack on the initiative process. The latest installment of this argument comes in a breathtaking editorial in the LA Times.
As discriminatory and simply wrong as Proposition 8 was, it was passed by a majority of California voters, and as such it deserved a defense. Because the state’s top elected officers take a pledge to uphold the U.S. Constitution, they were within their rights not to defend the initiative. But that left it without a champion. Although the architects of the initiative were allowed to fight for it in the lower courts, the high court majority found that because they weren’t named in the lawsuit and wouldn’t be harmed in any tangible way if Proposition 8 died, they lacked legal standing to defend it.
… In any case, some action is due. Initiatives should fail if voters reject them, and should be overturned if unconstitutional, but they should not die for lack of a legal defense.
Now read it again. The newspaper is saying that it doesn’t matter how wrong or discriminatory or destructive of constitutional rights a measure is, someone needs to be able to defend at every level in court.
The question that the paper doesn’t answer – that no one among the legions on the left, center and right have answered – is simple: Why?
Why must a ballot initiative that is unconstitutional and violate rights need even more of a defense than it has already?
That existing defense is considerable – initiative proponents can represent their measures in the state courts, and they also can do so in the federal courts, provided they can show some injury. But to the Times and others, that’s not enough.
This is madness, of course. Our state’s long departed sponsors of anti-Chinese, prohibitionist and segregationist measures would applaud the notion of even unconstitutional measures getting a defense. There’s no such animus in the current argument for a defense for every initiative; what there is deeply confused thinking about what ballot initiatives are.
A ballot initiative can be a wonderful thing, a way of checking power, or giving the people a voice outside of candidate elections, or pushing out an idea. But a ballot initiative is not a person. It’s not entitled to a defense at all times and at all venues.
In fact, in California, with its inflexible initiative process, ballot initiatives are profoundly anti-human. They lock into initiative statute and the constitution rules and formulas that restrict the ability of human beings present and future – voters – to elect other human beings – public officials – to make decisions.
The current reaction to the U.S. Supreme Court decision on Prop 8 thus lays bare a dirty secret of California. We like and trust initiatives more than we like and trust people. That’s at once inhumane (literally) and incoherent, since people write initiatives.