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Aaron Zelinsky

Aaron Zelinsky

Posted: November 30, 2009 08:26 PM

Constitutional Amendment by Popular Vote: Bad for Switzerland and California

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Switzerland and California may be 6,000 miles apart, but they suffer from the same political malady. The land of the cuckoo clock and the Golden State both provide for direct amendment of their constitutions by a mere majority vote in a single popular election. That is a bad idea.

Constitutions are not playthings. They are the foundational documents of governments and should be amended only after careful deliberation, since constitutional amendment is the ultimate political trump-card.

Popular amendment of constitutions via a single election turns government over to interest groups, who need not consider the long-term implications of their actions. Moreover, such a popular amendment process can catch the electorate in the mood of the moment, and enshrine their beliefs permanently into the constitution, without reflection. This is why the Framers of the U.S. Constitution wisely made it difficult to amend.

Consider, in contrast, California. Its constitution is one of the longest in the world, bloated by persistent amendment. Thanks to the ballot initiative, any group which spends several hundred dollars and collects signatures of 8% of the electorate can place a constitutional amendment on the state ballot. A majority of voters can approve the amendment in a single election.

In 1978, California passed Proposition 13 by popular vote. Prop 13 amended the California Constitution to limit increases on property tax bills to 2% annually, regardless of property values, unless the property changes ownership. Additionally, Prop 13 requires a two-thirds majority of both houses of the California legislature to increase state taxes.

At the same time Prop 13 restrains revenue, the California electorate continues to expect substantial services from the state government, such as quality public education, public works, highways, and a variety of social services.

Constrained by a constitutional straitjacket imposed by popular vote, the California legislature spent without taxing and racked up enormous debts. These debts have now come home to roost, and California is on the verge of bankruptcy. California's dire fiscal problems stem, in no small part, from the fact that it is constitutionally inhibited from raising taxes. Procedurally, it is easier for the United States to ratify a treaty (requiring 67% of the Senate), than for California to increase the tax on chewing gum (requiring 67% of both houses).

If California reflects the long-term damage that popular constitutional amendments can bring, Switzerland exemplifies the short-term dangers of amending constitutions too easily. The Swiss electorate has just voted to ban the construction of minarets, a move obviously aimed at the Swiss Muslim population.

Switzerland's own Justice Minister has criticized the ban as violating fundamental religious rights. Nevertheless, there is nothing Switzerland can do to overturn the amendment, short of trying to counter-amend in the next election cycle (the European Court of Human Rights could also invalidate the law at a future point). The Swiss Parliament would not have passed such a law after open and public deliberation, but a popular referendum easily allowed the public to be stampeded into amending the Swiss Constitution.

Imagine if a one-time vote of 51% of the electorate were all that were need to amend the U.S. Constitution. Many of the rights we hold dear would not have survived the panics that come after national disasters.

Real and lasting change must come through democratic means. But true constitutional democracy means public deliberation. Popular constitutional amendments adopted by majority vote in a single election are not reasoned and informed democracy; they are often mobocracy.

Democracy requires deliberation. Constitutions form the bedrock of a society's laws, and amending constitutions, whether in California or Switzerland, should require particular care and attention, not potentially short-sighted and manipulable ballot initiatives.