Manheim, Karl

English

Loyola Marymount University

Loyola Marymount University and Loyola Law SchoolDigital Commons at Loyola MarymountUniversity and Loyola Law SchoolLoyola of Los Angeles Law Review Law Reviews6-1-1998Symposium on the California Initiative Process:IntroductionKarl ManheimThis Symposium is brought to you for free and open access by the Law Reviews at Digital Commons @ Loyola Marymount University and Loyola LawSchool. It has been accepted for inclusion in Loyola of Los Angeles Law Review by an authorized administrator of Digital Commons@LoyolaMarymount University and Loyola Law School. For more information, please contact digitalcommons@lmu.edu.Recommended CitationKarl Manheim, Symposium on the California Initiative Process: Introduction, 31 Loy. L.A. L. Rev. 1161 (1998).Available at: https://digitalcommons.lmu.edu/llr/vol31/iss4/4INTRODUCTIONSYMPOSIUM ON THE CALIFORNIAINITIATIVE PROCESSProfessor Karl Manheim*Political reform movements swept the American states in thelate nineteenth and early twentieth centuries. One of their crowningachievements was the introduction of initiative lawmaking-legislationproposed and enacted directly by the people. The initiative processwas seen as a way to bypass the corruption and corporate control ofstate legislatures, and restore democratic self-governance in thepeople themselves. Today, a century later, it is debatable whetherthis form of "direct democracy" has fulfilled its motivating purpose,or whether initiatives have become just another tool of powerfulspecial interests.By their design, initiatives bypass state legislative processes en-tirely. In doing so, they also reject the political theory of"republican," or representative, government. Notably, the initiativeand other forms of direct democracy are absent in federal lawmaking.Our constitutional framers believed that only representative govern-ment could both implement the people's will and filter out the pas-sions and prejudices of majority factions. Indeed, the United Statesis one of only five democracies that has never had a national referen-dum.The situation is considerably different in California and otherstates that allow legislation or constitutional amendment by initiative.Many sweeping and controversial laws have been enacted by initia-tive. These run the gamut from property taxes to capital punishment.Even more than these, racial politics has been a prime target of theinitiative, from Proposition 1 in 1964 (banning fair housing laws) toProposition 209 in 1996 (prohibiting state affirmative action). Ifnothing else, these acutely focus the dialectic between minority rightsand majority rule.The initiative also profoundly affects California in process terms.It affects the way the Legislature works, the way electoral campaigns* Karl Manheim is a Professor of Law at Loyola Law School.1161LOYOLA OF LOS ANGELES LAW REVIEW [Vol.31:1161are waged, the way contributions are raised, and the way publicopinion is formed and implemented. Hot-button focus issues, pre-sented as initiatives, dominate the electoral process.The importance of initiatives in guiding the political develop-ment of California has often been recognized, yet poorly understood.The goal of this Symposium is to fill some of that void. It exploresthe workings of the California initiative process from various view-points: legal, political, historical, and practical. Given that nearly anyinitiative of substance winds up in protracted litigation, several of thearticles focus on judicial review of direct democracy.The article by Professors Karl Manheim and Edward Howardprovides a structural theory of the initiative power. It traces the po-litical development of the initiative process, its constitutional context,and its implementation by the California Supreme Court. Theauthors conclude that the initiative power has been given a very wideberth, perhaps because it approximates the exercise of ultimate po-litical power by the people in their sovereign capacity. Yet, it lacksthe safeguards normally associated with assertions of popular sover-eignty. Although apparently sacrosanct in legal terms, the initiativeprocess calls into question basic principles of democratic self-governance.The article by Craig Hoiman and Robert Stem explores the ju-dicial role in reviewing initiatives. It is critical of that role in severalkey cases involving significant ballot measures. The authors offersuggestions on how a more deliberative judicial review process can becreated, notably the reinstatement of three-judge federal courts forinitiative challenges.Professor Richard Hasen responds to the Holman/Ster articleand offers an alternative solution for perceived problems of initiativereview in federal court. He believes that although the existing systemof appellate review provides adequate safeguard against biased deci-sionmaking, a more random process of judge selection might be ap-propriate.The article by Michael Vitiello and Andrew Glendon also de-fends federal judicial review of California initiatives. Indeed, theyargue, the federal judiciary better represents majoritarian sentimentsthan does the process of direct democracy. This is because the initia-tive process has been captured by the very special interests it was de-signed to control.Ernest Graves argues in his article that some uses of the initia-tive may violate the Guarantee Clause, which requires that each statemaintain a "republican form of government." While the clause inArticle IV, Section 4 of the United States Constitution has been heldto be non-justiciable, because it raises a political question, the guar-antee of republican government is also contained in the California1162Constitution, where it is justiciable. The guarantee appears boththrough the state constitution's explicit incorporation of federal su-premacy and, more specifically, through the state charter's prohibi-tion of constitutional revisions through the initiative process. Thoseinitiatives that have effected a "revision" are, therefore, void.Finally, California Assembly Speaker pro Tempore Sheila JamesKuehl explores the functional political side of the initiative process.She discusses the inadequacies of law making by popular initiative,especially its rejection of legislative input. Here too the goal is to re-form the initiative process to make it more reflective of the people'swill, while preserving efficient and responsive government.While not formally part of this Symposium, a recent address byReverend Jesse Jackson to the students and faculty of Loyola LawSchool is also included. Reverend Jackson spoke on the impact ofinitiatives on civil rights and minority issues.These articles and essays add to the dialog on the theoretical andpractical strengths and weaknesses of the initiative process. Whilemuch has already been written, it remains a misunderstood tool ofself-governance. At its root, the use of initiative lawmaking chal-lenges foundational principles of democracy and the role of judicialreview under majoritarian rule.Whatever one's view on the merits of the initiative process, thereis no turning back the clock to 1911 to reconsider the wisdom ofGovernor Hiram Johnson and his reforms. Initiatives will remain, forthe foreseeable future at least, an inevitable part of the enduringdialectic between popular sovereignty and representative govern-ment.June 1998] 1163SYMPOSIUM1164 LOYOLA OF LOS ANGELES LAW REVIEW [Vol.31:1161

Symposium on the California Initiative Process: Introduction

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Symposium on the California Initiative Process: Introduction

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