California's Living Originalism

Recent graduate Michael Boardman published the following op-ed in the Friday, May 20 edition of the Los Angeles Daily Journal.

By Michael Boardman, Class of 2011

Back in January, a California Court of Appeal sided with one of California's most influential special interests, the Howard Jarvis Taxpayer Association, and overturned the state Legislature's ability to draft language for the titles and summaries that explain legislative initiatives on state ballots.

The decision itself is not necessarily a surprise. Titles of initiatives are supposed to be impartial descriptions, yet the Legislature had suggestively titled Proposition 9 the "Safe, Reliable High-Speed Passenger Train Bond Act," and the Howard Jarvis Taxpayer Association has been a juggernaut in state politics since it shepherded the infamous Proposition 13 in 1978. The surprise is that Jarvis and other special interests have repeatedly transformed the California Constitution with the help of the courts' standard of review, which takes inspiration from the harshest critics of constitutional dynamism -- the originalists.

For decades, the state Supreme Court has interpreted ambiguous language in initiatives by attempting to identify the intent of the voters. Since voters function as the legislature in direct democracy, this practice appears to be a natural extension of traditional statutory construction principles; courts generally seek to resolve ambiguities in the plain language of the law by identifying the intent of the lawmakers and interpreting their words accordingly.

But on a closer look, California's scheme seems to confuse philosophical principles, acting as a sort of Scalia-Breyer hybrid by using originalist principles to create a dynamic constitution. On the one hand, the court interprets initiative amendments based on the understanding of the public at the time it was passed (Justice Antonin Scalia's "original understanding"), and on the other it relies heavily on election materials as "legislative history," which Scalia finds largely irrelevant, to interpret initiative statutes consistently with current norms (Justice Stephen G. Breyer's responsive "living document"). This strange combination of values essentially creates a series of floating "originalist" interpretations, each based on its own constitutional amendment, a practice that tethers new laws to past interpretations and erodes the basic principles of California's direct democracy.

The originalist philosophy rests with a need to establish consistency in the rule of law. While often criticized as untenable, it can be defended based on its clear delineation of empirical standards. Whatever the difficulties with accurately understanding and transmuting past social landscapes, originalism can at least guarantee that the court will not be creating new interpretive principles out of whole cloth. Rather, the court applies a specific set of standards that, arguably, remain constant over time.

Direct democracy, however, is not suited to this type of analysis. It is inherently inconsistent; it asks the public to amend the Constitution on an as-needed, normative basis. The Framers of the California Constitution intended its meaning to change with the times. Any kind of ad hoc extension of prior worldviews is antithetical to the foundation of the Constitution as a living document.

To fulfill the aims of direct democracy, initiative amendments must be interpreted in a way that embraces and continues California's dynamic Constitution. Adhering to the intent of voters that existed at the time they passed constitutional amendments serves only to reinforce the originalist principle that the California initiative process expressly rejects. When it comes to interpreting ambiguous initiative language, the California court needs to decide which principles it actually holds dear.

If initiative amendment language is not clear, then why not strike the whole initiative and start over? Just as we can't ever know exactly what the Framers understood the words of the federal Constitution to mean 220 years ago, we can't determine the intent of 40 million Californians with any substantial accuracy. Often the best we can do is to look at statements describing the initiatives in the voter pamphlet -- statements made in large part by special interest groups. Such groups already dominate the information provided to the public in elections. Their influence should not control the judiciary as well.

A better approach may be to accept the amendments but also adopt Justice Breyer's interpretive test in its entirety, focusing on the purpose and consequences of initiative amendments instead of the amorphous intent of the voters. The California Constitution was intended to be responsive to the whims of the public, but the courts' voter intent analysis ensures that the document will be forever capricious. Initiatives are rarely proposed as part of a comprehensive governing scheme, and any later statutes or case law derived from these initiative amendments will be tied to the intents of various disjointed points in time. Courts should work to identify a larger cohesive purpose in the legislative amendments that form the backbone of our state laws. A constitution is meaningless if it is simply an accumulation of society's most heavily bankrolled beliefs.

California's direct democratic processes grew out of a distrust of government and a failure of old constitutional principles to adapt to new norms. But as much as Californians have historically distrusted legislators, they reserve a special kind of skepticism for special interests. Groups such as the Howard Jarvis Taxpayer Association routinely take power from the many and hand it to the few by drafting initiatives and creating much of the "indicia of voter intent" that courts look to for guidance.

If the state Supreme Court continues to apply its strange hybrid standard of review, combining originalism and dynamism, fights such as the one decided last month -- which, funded by special interests, are in essence fights over who gets to decide how the voters' intent can best be explained -- will continue to dominate the political marketplace and distort California's most fundamental document. In the meantime, we can at least be assured that the often-embattled initiative process cannot be criticized for lacking a sense of judicial irony.

Michael Boardman is a 2011 graduate of Loyola Law School, Los Angeles.