Friday, November 07, 2008

Amendment vs. Revision of the California Constitution

At Volokh, Dale Carpenter offers a thoughtful post on the distinction between amendment and revision of California's constitution, and whether Proposition 8 should properly be categorized as an amendment (requiring simple majority vote) or a revision (requiring "approval by two-thirds of each state house, followed by a majority vote"). Without having looked deeply at the issue, I suspect that the distinction was supposed to offer a procedural safeguard, but Carpenter raises interesting points about stripping away people's constitutional rights by majority vote.

Personally, I can't help but wonder if the amendment process itself should be amended (or is it revised). I recognize that it's a double-edged sword - if you make it harder for the people to amend the constitution, you effectively leave that power in the hands of legislatures who may be slow or reluctant to honor the wishes of a clear majority of the population on subjects like medical marijuana. But you also get bad policy, and it seems particularly bad tax policy, enshrined in the constitution, with the likely result that you will have financially mandated tax inequalities and budget problems. And you raise questions of whether matters arguably best addressed by legislation should be enshrined in a state constitution.

That is, you may try to fix a cyclical problem (e.g., budgeting issues) and end up creating a structural problem (a constitution that prevents the government from obtaining the tax revenues it needs to fulfill basic functions, or enshrining discriminatory tax policy that may deter immigration into a state or unduly burden a subset of state residents).

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