Constitutional Law Professor Jeffrey G. Purvis, San Joaquin College of Law
I've seen news reports about the battle between the City of Fresno and the proponents of Measure W, which as I understand it is an initiative seeking to reduce the rates charged by the city to water users. I know there must be a story of hidden political agendas on both sides of this issue, but since you guys at Valley Views on the Law are law professors and you are always talking about the structure of government and constitutional policies, I wanted to ask why anyone would object to voters exercising their democratic rights of self-government to vote on a matter of public concern? I know that politicians object whenever anyone tries to vote in a way that frustrates the politicians' desires, but from the perspective of democratic theory, how is it defensible to oppose even putting something like the water rate issue up for a vote?
--James Gilmore, Roanoke, Virginia
Mr. Gilmore, I have to say that if listeners like you continue to e-mail in such thoughtful questions, I'll never convince the Valley Views audience that I don't just write these things myself. The issue you raise is central to the nature of the government of the United States, and reflects, in my view and the view of other constitutional scholars, the fundamental distrust the Founders had of democracy itself. The United States is a republic, and thus its laws are made not by the people but by a representative body of legislators. The Constitution originally provided that the US Senate was selected by state legislatures, and that the President of the United States was select by a group called Electors, who were themselves elected by the voters. The Constitution was amended so that Senators are now elected by the voters, but the President is still selected by the Electoral College. The Framers set it up that way because they apparently believed that if ordinary voters, which in their time were propertied white males, were given too great a role in governmental decisions, their "mob mentality" could result in horrible outcomes like taking money away from rich people to give to the poor, and forcing rich people to obey the laws like poor people have to do, and other short-sighted decisions motivated by immediate self-interest and emotional reactions. The Framers were influenced by the civic republican tradition, which regarded the best government as one peopled by economically well-off, prominent political leaders, who could deliberate rationally and make decisions in the best interests of society rather than acting out of personal benefit and gain.
When you stop rolling on the floor laughing at that picture of elected government officials, remember that the Framers were engaged in a radical political experiment discarding the previous system of a hereditary monarchy and its feudal landed nobility. And if you wanted to consider how a movement to democracy could go wrong, examine the French Revolution, the immediate results of which were the Reign of Terror and the Emperor Napoleon. So if you've ever wondered why there is no federal initiative process, it's because the government of the United States was designed to insure that direct participation in government by the people was impossible. Article IV, Section 4 of the Constitution states, "The United States shall guarantee to every State in this Union a Republican Form of Government." If you wanted to amend the Constitution to provide for a federal initiative process, you'd have to convince Congress or the state legislatures to call a Constitutional Convention first.
But here in California, our right to vote on initiatives is guaranteed by the State Constitution. According to my research for today's program, the popular movement to permit voter initiatives was a response to the corruption of state government in the early 20th Century, when a large railroad corporation controlled the legislature through bribery. Hiram Johnson and the progressives swept away the evil corruption and established the system we enjoy today, where large corporations can no longer control our government with their immense wealth. I'm joking, of course--today, large corporations control the legislature through campaign contributions and lobbying, and have learned to use their money to control the initiative process to further their political goals. The initiative process has been used in California to permit racism in residential housing, to make gay marriage illegal, and to end affirmative action. Let the voice of the people be heard!
I'd like to leave you with one horrifying thought, Mr. Gilmore. Imagine a not-so-distant future when people can vote using their mobile phones (or whatever wearable tech we have at the time), suitably verified by retina scan and other infallible security measures. It might be possible to dispense with the legislature entirely, and made the day-to-day decisions of government democratically, via some Twitter/Tumblr/Instagram/Snapchat like process. Perhaps the Constitution could be amended in the same fashion. Then, the next time some Dzhokhar Tsarnaev sets off a bomb, we can repeal the Establishment Clause, repeal the Fourth Amendment, and repeal the equal protection clause, and really get down to the business of ending terrorism.