The problem with California and its Constitution

and the case for, and against,

a proposed new Constitution

California is broken…

• Projected budget shortfall $20.7 billion 2010-2011 (Legislative Analyst's Office)

• Total debt of $13.4 billion, May 2010 (State Treasurer)

• Perennially late budgets and permanent legislative gridlock

• A very dissatisfied electorate, but little reform

It’s Constitution may be to blame

• Third longest in the world, behind India and Louisiana (Janiskee, Masugi)

• Amended over 500 times (ibid)• Convoluted combination of Constitutional law, statute, and ad hoc reform

Hold on a minute!

The best discussion is deep.

It is not about factoids

Plan of attack

• First, the deep problems with the current Constitution

• Second, a proposed replacement Constitution and the case for it

• Third, problems with the proposed replacement

Contractual nature of constitutions

• Many constitutions have failed to protect liberty, though it was an aim. (Notably: Soviet Constitutions and that of Argentina)

• To succeed, a constitution must be a useful tool for the common person in their defense of their rights.

• The layman must know the terms of the contract!

California Constitution fails

the test• As the 3rd longest in the world, with over 500 amendments (Janiskee, Masugi), and reams of statue law integrated, California’s Constitution fails to be a knowable contract.

• Resultantly, the average Californian cannot use it in defense of inalienable rights.

It’s not a conspiracy, but just

as bad• The Govt. of California has been one of good intentions.

• The results for the prosperity and liberty of Californians have, nevertheless, been disastrous.

• Californians are unable to cite Constitutional protections against policies that injure them.

• Often, the Constitution itself enacts policies that are injurious. (progressive income tax, standardization of education, and cartelization of health insurance to name but a few…)

• California’s Constitution therefore is a useless implement in the worst degree.

Weak in the face of Federal power

• California’s constitution was written, assuming the Federal government would not be able to bully the States.

• With the formation of the IRS, the Federal government gained a strong tool to do just that. (Though the Federal Reserve and Department of Education are also dangerous to State sovereignty.)

• California’s tax base is largely expropriated to the national government, only to be returned for compliance with national directives.

• California’s Constitution provides no methods of responding to Federal growth in violation of the US Constitution.

The rise of the States, but

California is left behind• California is held in check by the Supremacy

Clause of the US Constitution, though the Federal Government is in violation of its charter most of the time.

• Many other states are rising in opposition to the Federal Government on various ideological or practical grounds, for example 20 States against the controversial health care bill.

• With partisan gridlock in the State, there is little political room for the Governor or Legislature to force the Federal government to cease and desist.

• A Constitutional grant of exercise would lend legitimacy to such a move, but alas, no grant exists in our Constitution.

California fights itself

• California is the most populous state, and the most ideologically diverse.

• It is also the most geographically diverse.• No two regions have highly similar needs, and

many are at odds.• Disputes are constant over ecological

protections, air quality regulation, water supply, and the precise nature of business regulation.

• Example: the water needs of Southern California are widely protested by the San Joaquin valley, and cause unease in Northern California where much of the water comes from.

• At current: Southern California dominates state-wide water policy due to large population, causing resentment in less populated areas.

It is proposed that California should

split up.• For reasons such as these, there have been several movements in the Legislature to split the State into several. (1854, 1859, 1965, 1992, 2009)

• There are populist separatist movements as well, such as the long lived State of Jefferson, a movement for Northern California and Southern Oregon to become a State.

• Proponents often cite the need to break government into workable chunks that respond to local needs.

• More on this later…

On to the proposed Constitution

The case for it, that is, how it addresses the deep

problems.

About it…

• Full text online, in public domain. LINK

• Drafted by author of this presentation, Sean Lowrie, a music student at CSU Fresno.

• Author admits his strong libertarian and Jeffersonian bias.

• Author has erected a discussion network, hoping Californians of all ideologies and walks of life will take ownership of the proposal.

Strong protection of inalienable rights

• An entire article (Article III) in absolute defense of life, liberty, and property rights.

• Significant or primary purpose of the other articles is to protect the same.

• These rights, mentioned often and clearly, give the average Californian a knowable contract: a usable tool in defense of their rights.

Short enough to be knowable

• Similarly, by short length (approximately same as US Constitution) it fulfills the role as a knowable contract.

• Annotations, not in legalese, help clarify issues for the layman, and provide solid insight for constitutional scholars.

• Likely that in future times of controversy, guidance can be reliably extracted from this Constitution.

Promotes sound economic policy

• Proscriptions against political wealth redistribution remove California’s largest economic burden: entitlements.

• Many provisions in accord with hard money policies and the Austrian school of economics, in contrast to Keynesian economics which has been a bulwark of the massively indebted US Federal Government.

• Leaves regulatory matters in the hands of counties, promoting local solutions to local economics.

Strong sovereignty of the State

• Article I defines nature of California-Federal relationship in explicit terms.

• Retains all sovereign rights not expressly delegated, providing strong legal defense against Federal encroachment.

• Most importantly: retains control of California tax base, denying Federal government most significant tool of coercion.

• Provides nullification if the Federal government acts in violation of its Constitution.

• Even allows for peaceful secession in worst-case scenarios, though simultaneously discouraging secession.

Proposes decentralization

• Instead of splitting the State into several, counties have sovereign rights, including legislation, and public schools.

• By allowing county-legislation, circumvents political gridlock in Sacramento.

• Mechanism for counties to pursue joint legislation: policy solutions can geographically scale to the need of the situation. (ex: Central Valley and Bay Area counties making joint legislation on air pollution)

• State Legislature retained as a venue of “last resort.”

• Makes effect of the State and of counties void if in violation of this Constitution.

• Trade off: less opportunity for far away regions to influence each other, but this is a plus for liberty!

Improves on US Model

• As current constitution, and new, are based in some degree on US Constitution, weaknesses of the latter are relevant to California.

• Provides further proscriptions against the kind of problems in Federal Government that have surfaced in the 20th century.

• For State Legislature: partisan offices barred, eminent domain is barred, minor improvements on legislative process, further proscriptions on Legislative fiat.

• Judiciary: juries explicitly try both fact and law.

• Further “null effect” clauses for violations of Constitution. (Similar to Virginia and Kentucky resolutions of 1798, 1799)

Provides for gradual transition

• To alleviate hardships and political instability, allows all current programs to remain for (up to) 10 years after ratification. (Welfare programs, unemployment, State-wide schools, etc.)

• Mandatory, gradual, reduction in funding in last five years.

• Gives free-markets time to replace discontinued government services in non-political fashion.

• Time for counties to organize to their own benefit.

• Provides guidance on acquisition of Federal projects run in violation of US Constitution. (CVP, CSWP, National parks, etc.)

Requires reaffirmation

• Lysander Spooner and Thomas Jefferson both raised strong objection to the permanence of constitutions, pointing out permanence is antithetical to liberty. (No Treason papers, personal letters, respectively)

• New Constitution is audited by counties (again localization) and reaffirmed by same every 20 years, satisfying these arguments.

• This mechanism was also proposed by Thomas Jefferson.

• Counties not supporting reaffirmation are not forced to remain part of the State, preventing much political tension and coercion.

The Proposed California

ConstitutionProblems, and the case

against

Not thoroughly vetted

• Author has no notable credentials in public policy.

• Many proposals are radical, or unprecedented, and need careful examination as to practicability and to unintended consequences.

• This has not happened yet, but is open to public to do so.

Likely to be extremely

controversial• Californians not convinced of need of limited constitutional-convention, as failure of RepairCalifornia.org shows.

• Special interests groups controlling Legislature are extremely likely to resist this much more (classically) liberal constitution, and to campaign against it.

• Libertarian nature of new Constitution likely to be distasteful to a wide range of Californians.

• Are these enough reasons to ditch the effort, to spur conversation, or rather to charge ahead?

Worsening CA-Fed relations

• Federal government unlikely to approve of any State Constitution in opposition to its powers, legitimate powers or otherwise.

• Possibility of one or more US government branches striking it down.

• Depending on popular sentiments, may lead to ugly political showdown, unclear which “side” would prevail.

• What are preferences of Californians? Liberty at all costs? Peace at all costs? To remain politically relevant? Some more moderate position?

Isn’t this a nuclear option?

• California has not attempted more moderate reforms, such as the kind exemplified by the Get Out of Our House movement.

• Have the various authors who’ve raised objection to the current California Constitution stated their case correctly, and does it hold water?

• Have various reform movements failed due to lack of understanding deep problems, or rather due to lack of organization or improper marketing?

Final comments from author

• Asserts that more moderate reform is indeed inadequate.

• Asserts that new Constitution zeros in on a positive change, rather than piecemeal destruction of what’s wrong.

• Asserts that new Constitution has the moral high-ground over all competing suggestions he’s heard of.

Much more discussion is needed

Discuss with family, friends, neighbors, co-

workers.Read up on likely

questions and doubts.Join public discussion

and revisionRead for yourself at:caliberty.4umer.com