Boardman: ‘Power to the people’ isn’t what it should be in California
Observations from the center stripe: Update edition
FOWLER CENTER needs to update the parking lot map that directs delivery trucks behind the buildings. The map has an Albertson’s where Save Mart is now … GUILT SIP: It takes four to seven gallons of water to produce one gallon of that craft beer you like to drink …THE NEW state water conservation rules say you can’t use a hose to wash your car if it doesn’t have a shut-off valve. What about those of us who turn off the water while soaping down the car and wiping it off? … THE GIANTS did little to improve their offense during the off-season, so it should come as no surprise that they’re reverting to mean after out-achieving in the first half of the season … TESLA has taken its act to Nevada in an effort to get another state to bid for its battery factory. CEO Elon Musk should be wearing a mask and carrying a gun ...
California’s initiative process is supposed to allow its citizens the opportunity to exercise their basic democratic right to govern themselves, the essence of this country since its founding over 220 years ago.
“Freedom resides first in the people without need of a grant from the government,” Anthony Kennedy, an associate justice of the U.S. Supreme Court and a native Californian, wrote in a recent dissent.
“The California initiative process embodies these principles and has done so for over a century … The people have exercised their own inherent sovereign right to govern themselves.”
But that right is being eroded by activist judges and elected officials who apparently believe they can pick and choose what laws and initiatives they will defend, anointing themselves the final arbiters of how the people will govern themselves.
This has led to increased cynicism among people and a lack of enthusiasm for voting by others who believe their votes don’t count anymore. This attitude was summed up in a recent letter to The Union from James “Jimmie” Williams of Grass Valley, who wrote:
“People don’t vote much anymore because when the majority of voters elect something … some judge or judges overturn it if they don’t like it.”
People have been complaining about activist judges for a long time, but nobody seems too upset about the recent trend of California officials deciding what laws and initiatives they’ll defend. People should be upset.
Kennedy wrote the dissent quoted above last year when the U.S. Supreme Court refused to consider an appeal to uphold Proposition 8, the ban on same-sex marriage approved by the voters of California.
The constitutionality of Prop 8 was challenged almost immediately after it passed in 2008, with first the state Supreme Court and then a judge in the U.S. Court of Appeals declaring the measure unconstitutional.
And where was California’s top legal officer while all of this was going on? Attorney General Kamala Harris declined to defend the measure, essentially nullifying the votes of seven millions Californians who backed the measure.
Defense of the peoples’ will had to be taken up by private attorneys, which led the U.S. Supreme Court to reject their appeal on jurisdictional grounds. “We have never before upheld the standing of a private party to defend a state statute when state officials have chosen not to,” wrote Chief Justice John Roberts.
What could be more simple? If you don’t like a law or initiative, just adopt a rope-a-dope defense and do nothing.
This isn’t the first time that has happened — Gov. Gray Davis declined 20 years ago to defend a voter initiative designed to discourage illegal immigrants from entering the state — and there is currently an issue before the courts that will again test the resolve of our elected officials to defend the will of the people.
The issue is (again) California’s death penalty, most recently approved by voters in 1978 and reaffirmed two years ago when they rejected a ballot initiative to substitute life in prison for execution.
A U.S. District judge in Santa Ana declared last month the law unconstitutional because it is “plagued by inordinate and unpredictable delay.” Among other things, he pointed out that just 13 of 900 people sentenced to death since 1978 have been executed.
The judge didn’t mention that endless appeals sanctioned by the courts make it more likely a person will die on Death Row than be executed, and that another federal judge has put a hold on executions since 2006 because of what he said are flaws in the state’s execution process.
So what’s the attorney general’s position on this? A spokesman said Harris “is reviewing the ruling.” Guess where this is headed.
None of this is about where you stand on the issues — I voted against Prop. 8 and I’m lukewarm on the death penalty — but whether elected officials have a duty to carry out the will of the people.
One way to make sure this happens is to create an independent state officer who’s elected by the people and whose budget is set by a formula the legislature can’t change. The job: Defend the will of the people, all the way to the U.S. Supreme Court if necessary.
This would be a good cause for our conservative brethren to embrace. Feeling alienated and adrift in the bluest of blue states, they waste their energy on dead-end propositions like the State of Jefferson, constitutional sheriffs, overturning Common Core and taking control of federal forests instead of issues that might actually engage the masses.
California conservatives insist they are all for we the people. Well, here’s an issue that goes to the heart of our democratic rights, one that can fire up the conservative base and attract support from moderates and — dare I say it — liberals. What a concept.
George Boardman lives in Lake of the Pines. His column appears in Monday editions of The Union.
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