Malleable constitutions: Reflections on state constitutional reform

Texas Law Review

Volumn 87, Issue 7, 2009, Pages 1517-1544

  Cain, Bruce E ^a   Noll, Roger G ^b  

^a Department of Political Science   (United States)

^b STANFORD UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

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EID: 69249142197     PISSN: 00404411     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (185)

1. By two-thirds majorities in both houses, Congress can propose an amendment, which must then be ratified by the legislature or a constitutional convention in three-quarters of the states. U.S. CONST, art. V. In addition, two-thirds of the state legislatures can request a constitutional convention to propose amendments, the results of which also must then be approved in three-quarters of the states. Id.
2. Not all constitutions require constitutional amendments to be substantially more difficult to pass than statutes. For example, in Brazil, constitutional amendments can be passed by a mere 60% majority in both houses of the National Congress. CONSTITUICAO FEDERAL [C.F.] art. 60, para. 2 (Braz.), translated in 3 CONSTITUTIONS OF THE COUNTRIES OF THE WORLD (Rüdiger Wolfrum & Rainer Grote eds., 2009).
3. See, e.g., Miguel Schor, Constitutionalism Through the Looking Glass of Latin America, 41 TEX. INT'L L.J. 1, 6-7 (2006) (discussing the desirability of entrenching constitutional standards as a way to protect democratic practices and explaining the challenge of accomplishing entrenchment in Latin American governing regimes).
4. See id. at 29-30 ("The construction of the institutional infrastructure needed to cabin political power and effectuate republican government, however, is impossible without constitutional rules that are beyond the reach of ordinary politics. One of the lessons of Latin American constitutionalism is that long-term political stability is impossible without entrenched constitutional rules.").
5. see also Clinton Rossiter, Seedtime of the Republic: The Origin of the American Tradition of Political Liberty 382 (1953) ("Every man must surrender enough control over his original liberty to permit government to maintain an organized, stable, peaceful pattern of human relations.").
6. See Letter from Thomas Jefferson to James Madison (Sept. 6, 1789), in 7 THE WRITINGS OF THOMAS JEFFERSON 454, 455-59 (Andrew A. Lipscomb & Albert Ellery Bergh eds., Memorial ed. 1903) (proposing nineteen years as the sunset period for a constitution because Jefferson believed that one generation should not impose its political values on the next and, according to mortality tables at the time, half of the adult population that was alive when a constitution was adopted would be dead approximately nineteen years later).
7. see also Letter from Thomas Jefferson to Thomas Earle (Sept. 24, 1823), in 15 THE WRITINGS OF THOMAS JEFFERSON, supra, at 470, 470 (arguing that a past generation should not be allowed to bind a succeeding generation to its laws and contracts).
8. U.S. CONST, art. IV, § 4.
9. See Eric Biber, The Price of Admission: Causes, Effects, and Patterns of Conditions Imposed on States Entering the Union, 46 AM. J. LEGAL HIST. 119, 127-128 (2004) (noting that Congress has imposed specific admissions requirements on nearly all of the states admitted since the adoption of the Constitution and that these requirements generally included certain provisions that had to be included in a state constitution or "irrevocable" ordinance).
10. See U.S. CONST, art. VI, cl. 2 (establishing the Constitution as "the supreme Law of the Land," regardless of any state law or constitution); Biber, supra note 7, at 129-131 (summarizing the various conditions Congress has historically imposed before admitting new states, none of which limited the scope of the prospective state's constitution).
11. See, e.g., ALA. CONST, art. Ill, § 42 ("The powers of the government of the State of Alabama shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are legislative, to one; those which are executive, to another; and those which are judicial, to another.")
12. ARK. CONST, art. IV, § 1 ("The powers of the government of the State of Arkansas shall be divided into three distinct departments, each of them to be confided to a separate body of magistracy, to-wit: Those which are legislative, to one, those which are executive, to another, and those which are judicial, to another.");
13. N.J. CONST, art. Ill, § 1 ("The powers of the government shall be divided among three distinct branches, the legislative, executive, and judicial. No person or persons belonging to or constituting one branch shall exercise any of the powers properly belonging to either of the others, except as expressly provided in this Constitution.").
14. E.g., Cal. CONST, art. 1, § 25 ("The people shall have the right to fish upon and from the public lands of the State and in the waters thereof....").
15. R.I. CONST, art. 1, § 17 ("The people shall continue to enjoy and freely exercise all the rights of fishery ....").
16. Vt. CONST, ch. 2, § 67 ("The inhabitants of this State shall have liberty in seasonable times, to hunt and fowl on the lands they hold, and on other lands not inclosed, and in like manner to fish ....").
17. G. Alan Tarr, Introduction to 3 STATE CONSTITUTIONS FOR THE TWENTY-FIRST CENTURY 1, 2 (G. Alan Tarr & Robert F. Williams eds., 2006).
18. Gerald Benjamin, Constitutional Amendment and Revision, in 3 STATE CONSTITUTIONS FOR THE TWENTY-FIRST CENTURY, supra note 11, at 177, 180.
19. Tarr, supra note 11, at 2.
20. See id. (observing that state constitutional initiatives have impacted national politics and reporting examples of this vertical federalism).
21. Id.
22. Id.
23. Benjamin, supra note 12, at 196.
24. Tarr, supra note 11, at 3.
25. Benjamin, supra note 12, at 181-182.
26. See id. at 181 (reporting that 664 of the 862 state constitutional amendments proposed from 1992 to 2000 were adopted, for a 77% adoption rate).
27. See Elizabeth Garrett, Hybrid Democracy, 73 GEO. WASH. L. REV. 1096, 1097 (2005) ("Hybrid Democracy-neither wholly representative nor wholly direct, but rather a complex combination of both at the local and state levels, which in turn influences national politics.").
28. See, e.g., Donald P. Green & Ian Shapiro, Pathologies of Rational Choice Theory 47-48 (1994) (commenting on the sheer volume of rational choice literature on voter turnout).
29. See id. at 4 (discussing insights of rational choice scholarship on the actions and motivations of politicians and political organizations).
30. See Tarr, supra note 11, at 4-7 (describing the wide range of topics covered by state constitutions, often necessitating a need for constitutional reform).
31. See Benjamin, supra note 12, at 178-179 (pointing out that the term revision is only specifically referenced in the language of twenty-three state constitutions, and even then, the line is not clear and sharp)., In California, the substantial change that might be considered a revision is acknowledged to have both quantitative and qualitative dimensions. Many amendments to many parts of the constitution can become a revision, or one single provision that profoundly alters the functions of a government branch could also qualify as a revision. See Raven v. Deukmejian, 801 P.2d 1077, 1085-1086 (Cal. 1990) (noting that a substantial change in either the quantitative or qualitative effects of a measure on a constitutional scheme amounts to a "revision" rather than an amendment) In California, the substantial change that might be considered a revision is acknowledged to have both quantitative and qualitative dimensions. Many amendments to many parts of the constitution can become a revision, or one single provision that profoundly alters the functions of a government branch could also qualify as a revision. See Raven v. Deukmejian, 801 P.2d 1077, 1085-1086 (Cal. 1990) (noting that a substantial change in either the quantitative or qualitative effects of a measure on a constitutional scheme amounts to a "revision" rather than an amendment); McFadden v. Jordan, 196 P.2d 787, 788-789 (Cal. 1948) (noting that a purported amendment to the California constitution that would repeal or substantially alter at least the majority of the constitution's articles could not be submitted to electors as an "amendment" but rather was a "revision," which must be proposed by convention).; McFadden v. Jordan, 196 P.2d 787, 788-789 (Cal. 1948) (noting that a purported amendment to the California constitution that would repeal or substantially alter at least the majority of the constitution's articles could not be submitted to electors as an "amendment" but rather was a "revision," which must be proposed by convention).
32. See Peter J. Galie & Christopher Bopst, Changing State Constitutions: Dual Constitutionalism and the Amending Process, 1 HOFSTRA L. & POL'Y SYMP. 27, 30 (1996) (discussing the differences between the typical state constitutional amendment process and the typical state constitutional revision process).
33. Benjamin, supra note 12, at 178; G. Alan Tarr & Robert F. Williams, Foreword: Getting From Here to There: Twenty-first Century Mechanisms and Opportunities in State Constitutional Reform, 36 RUTGERS L.J. 1075, 1082 (2005).
34. Benjamin, supra note 12, at 178.
35. Tarr & Williams, supra note 27, at 1079 (discussing majority and supermajority requirements in state constitutions to make a convention call).
36. Id.
37. Benjamin, supra note 12, at 192.
38. Id. at 193.
39. Id.
40. See id. at 194-199 (discussing the different methods of staffing, structuring, and operating a convention).
41. Id. at 199-200.
42. See Tarr & Williams, supra note 27, at 1083-1084 (discussing the utility of the commission approach insofar as it circumvents at least some constitutional impediments to reform).
43. See Benjamin, supra note 12, at 191 (discussing the Florida commission scheme as an example).
44. Id.
45. Id. at 192.
46. See id. at 181-182 (describing the different approaches of all the states for allowing the legislature to pass an LCA).
47. Id. at 181.
48. Id. at 181-182.
49. See id. at 182 ("Provisions for size of majority and frequency of passage are often linked.").
50. See id. at 185 (identifying Delaware as the sole exception).
51. Id.
52. Id. at 186.
53. Id. at 188-89.
54. Id. at 189.
55. Id. at 188.
56. Id. at 183-84.
57. See Tarr, supra note 11, at 3 (discussing the general legislative desire to introduce needed changes without promoting fundamental reform).
58. Benjamin, supra note 12, at 178.
59. Id. at 183, 190; G. Alan Tarr, The Judicial Branch, in 3 STATE CONSTITUTIONS FOR THE Twenty-first Century, supra note 11, at 85,92.
60. Tarr, supra note 53, at 92.
61. For a discussion of the measure and its effects on the California legislature by the Policy Institute of California, see generally BRUCE E. Cain & Thad KOUSSER, ADAPTING TO Term Limits: Recent Experiences and New Directions (2004).
62. See Legislature v. Eu, 816 P.2d 1309, 1316-1320 (Cal. 1991) (holding that an amendment creating legislative term limits left the fundamental state constitutional structure unchanged and thus was not an unconstitutional revision).
63. See Mathew D. McCubbins, Putting the State Back in State Government: The Constitution and the Budget, in CONSTITUTIONAL REFORM IN CALIFORNIA 353, 363-64 (Bruce E. Cain & Roger G. Noll eds., 1995) (describing the extensive and convoluted patchwork of constitutional limitations on legislators' taxing and spending powers and how such amendments often restrain legislators' abilities).
64. Id.
65. See Tarr, supra note 11, at 1-2 (detailing the various aspects of state constitutions that make them so comprehensive).
66. The complexities of Proposition 98 funding include a guaranteed thirty-nine percent base of General Fund spending, with annual increases tied to a formula based on school attendance, per capita personal income, and General Fund revenues. ELIZABETH G. HILL, LEGISLATIVE Analyst's Office, Proposition 98 Primer 3 (2005), http://www.lao.ca.gov/2005/prop-98-primer/prop-98-primer- 020805.pdf. The legislature can suspend the Proposition 98 guarantee for one year by a two-thirds vote. Id. at 4.
67. See Andrew L. Roth, Rose Inst, of State & Local Gov't, The California Legislature: Some Facts and Figures 1 (2008), https://www.policyarchive.org/ bitstream/handle/10207/8134/CALeg.pdf (reporting Democrats′ advantages over Republicans in the California State Legislature in 1961 (47% to 33%), 1976 (55% to 25%) and 1988 (48% to 32%))
68. Morris P. Fiorina & Samuel J. Abrams, Is California Really a Blue State?, in THE NEW POLITICAL Geography of California 291, 293-294 (Frédérick Douzet et al. eds., 2008) (indicating that between 1943 and 2006, Republican governors served a total of forty-three years while Democratic governors served a total of twenty-one years; that between 1948 and 2006, Republican presidential candidates carried California in nine out of fifteen presidential elections; and that between 1944 and 2008, Democrats served seventy-four years in the U.S. Senate whereas Republicans served fifty-two years)
69. see also California State Library, Governors of California-Biographies, http://www.californiagovernors.ca.gov/h/biography/index-party.html (listing governors of California by party: since 1900, there have been fifteen Republican governors and four Democratic governors).
70. See Bruce E. Cain & Thad kousser, Adapting to Term Limits: Recent Experiences AND NEW DIRECTIONS 53 (2004) ("A primary motive behind Proposition 140, made explicit by its backers, was to rid Sacramento of the dictatorial leadership and extreme partisanship that, in their contention, characterized the 1980s.").
71. See Gary Moncrief et al., Composition of Legislatures, in INSTITUTIONAL CHANGE IN American Politics: The Case of Term Limits 22, 30 (Karl T. Kurtz et al. eds., 2007) ("The assumption was that the Republican Party, which was the 'out party' at the time the term limit movement emerged, would benefit.")
72. Mark DiCamillo & Mervin Field, Smaller Majority Now Favoring Prop. 93, the Term Limits Initiative, THE FIELD POLL 2247, Oct. 31, 2007, at 3 tbl.2, http://www.field.com/fieldpollonline/subscribers/Rls2247.pdf.
73. See, e.g., DEMOCRATIC NAT'L CONVENTION COMM., THE 2008 DEMOCRATIC NATIONAL Platform: Renewing amerjca's Promise 56 (2008), http://www.democrats. org/a/party/platform .html (decrying the influence of oil and insurance lobbyists and supporting campaign finance reform "to reduce the influence of moneyed special interests").
74. John M. Broder, Schwarzenegger Proposes Overhaul of Redisricting, N.Y. TIMES, Jan. 6, 2005, at A16 (commenting on the impending "collision" between Governor Schwarzenegger and the California Democrats who "will oppose the redistricting plans").
75. See John R. Petrocik, Candidate Strategy, Voter Response, and Party Cohesion, in VOTING at the Political Fault Line 270, 275 (Bruce E. Cain & Elizabeth R. Gerber eds., 2002) ("California's blanket primary was initially sponsored by Republican moderates as a solution to the presumed dominance of GOP nomination politics by ideological conservatives.").
76. See, e.g., Cal. Fam. CODE § 300 (West 2004) (defining marriage as "a personal relation arising out of a civil contract between a man and a woman").
77. See Jill Tucker, Governor Cites Prop. 22 As He Vetoes Leno Bill, S.F. CHRON., Oct. 13, 2007, at B2 (explaining that in 2007 the Governor vetoed a "gender-neutral" marriage bill, after vetoing a similar bill in 2005).
78. See In re Marriage Cases, 183 P.3d 384, 399 (Cal. 2008) (holding that the right to marry encompasses "the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual's liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process").
79. See infra Part IV
80. See Bruce E. Cain et al., Constitutional Change: Is It Too Easy to Amend Our State Constitution?, in CONSTITUTIONAL REFORM IN CALIFORNIA, supra note 57, at 265, 269 ("[T]he average passage rate for ICAs since 1910 is 31 percent.").
81. Bruce E. Cain, Constitutional Revision in California: The Triumph of Amendment over Revision, in 1 STATE CONSTITUTIONS FOR THE TWENTY-FIRST CENTURY, supra note 11, at 59, 59 (noting how it is "almost impossible to revise the [California] state constitution").
82. For a more complete discussion of the California situation, see id. at 59-71.
83. Cal. Const. Revision Comm'n, Final Report and Recommendations to the Governor and the Legislature 1 (1996), http://www.californiacityfinance.com/ CCRCfinalrpt.pdf.
84. See CAL. CONST, art. IV, § 11 (providing for the election of the Lieutenant Governor, attorney general, controller, secretary of state, and treasurer); id. art. IX, § 2 (doing the same for the superintendent of public instruction)
85. CAL. INS. CODE § 12900(a) (West 2005) (making the insurance commissioner also an elected position)
86. see also Cal. CONST, of 1879, art. V, §§ 14, 17, art. IX, § 2 reprinted in CONSTITUTION OF THE STATE OF CALIFORNIA 188-189, 242 (W.F. Henning, ed., Chas. W. Palm Co. 2d ed. 1899) (establishing the original versions of these provisions, minus the insurance commissioner, which did not then exist).
87. Cal. Const. Revision Comm'n, supra note 74, at 3.
88. Cain, supra note 72, at 62-63.
89. Id. at 62.
90. Id. at 63.
91. See Cain et al., supra note 71, at 265 ("Of the 23 states that have the popular initiative, only 17 permit constitutional amendment (ICAs).")
92. see also INITIATIVE & REFERENDUM INST., Signature, Geographic Distribution and Single Subject (SS) Requirements for Initiative Petitions, http://www.iandrinstitute.org (click on drop-down box "I&R Quick Facts"; then follow "States with the Initiative Process (PDF)") (listing the seventeen states that allow constitutional amendment by initiative and describing their precise procedural requirements).
93. E.g., ALA. Const, art. I, §§ 4-7 (guaranteeing freedom of religion, speech, assembly, and due process) Haw. Const, art. I, §§4, 5, 12 (providing freedoms analogous to the First Amendment of the U.S. Constitution, recognizing due process and equal protection rights, and prohibiting excessive bail and cruel and unusual punishment).
94. Haw. Const, art. I, §§4, 5, 12 (providing freedoms analogous to the First Amendment of the U.S. Constitution, recognizing due process and equal protection rights, and prohibiting excessive bail and cruel and unusual punishment).
95. ME. CONST, art. I, §§ 5, 16, 23 (prohibiting unreasonable searches and seizures, guaranteeing the right to bear arms, and prohibiting titles of nobility).
96. MISS. CONST, art. III, §§19, 21 (prohibiting quartering of soldiers, and guaranteeing habeas corpus)
97. MONT. CONST, art. II, §§ 5-7, 25 (guaranteeing freedom of religion, assembly, speech, expression, and press, and prohibiting self-incrimination and double jeopardy).
98. For a full discussion of the relation between state courts and fundamental rights, see Robert F. Williams, Rights, in 3 STATE CONSTITUTIONS FOR THE TWENTY-FIRST CENTURY, supra note 11, at 7, 7-35.
99. The proposed revision was to add a Section 7.5 to Article II of the California constitution that read: "Only marriage between a man and a woman is valid or recognized in California." Proposition 8, Official Voter Information Guide: Text of Proposed Laws 128 (Nov. 4, 2008) available at http://voterguide.sos.ca.gov/past/2008/general/text-proposed-laws/ text-of-proposed-laws.pdf#prop8.
100. See In re Marriage Cases, 183 P.3d 384, 407-409 (Cal. 2008) (tracing the history of same-sex marriage laws in California).
101. See Amanda Alquist, Note, The Honeymoon Is Over, Maybe for Good: The Same-Sex Marriage Issue Before the California Supreme Court, 12 CHAP. L. REV. 23, 24 (2008) ("In 1977, the California Legislature... [added] gender-specific terms in order to prohibit same-sex marriage.").
102. See Laura E. Friedman, Comment, "Wedlock Deadlock": Equal Protection Versus the Will of the Voters, 38 McGEORGE L. Rev. 545, 554 (2007) (identifying the stated goal of Proposition 22 as ensuring that California did not recognize same-sex marriages performed in other states).
103. Cal. Sec'y of State, Statement of Vote: 2000 Primary Election, at xi (2000), *http://www.sos.ca.gov/elections/sov/2000-primary/sum-measures.pdf (providing the final voting totals).
104. Tucker, supra note 68.
105. See 183 P.3d at 453 (holding that the statutory limitation of marriage to heterosexual relationships was unconstitutional).
106. See ProtectMarriage.com, Why Proposition 8 (2008), http://www. protectmarriage.com/ about/why (stating that Proposition 8 was being advanced to overturn the California Supreme Court and amend the state constitution to restrict marriage to be between a man and a woman).
107. See Text of Proposition 115, § 3 (1990) available at http://holmes.uchastings.edu/cgi-bin/starfinder/6153/calprop.txt (amending Article I, Section 24 of the California constitution to include the following language: "This Constitution shall not be construed by the courts to afford greater rights to criminal defendants than those afforded by the Constitution of the United States.").
108. 801 P.2d 1077 (Cal. 1990).
109. Id. at 1089.
110. E.g., Va. CONST, art. XII, § 2 (calling for a vote of two-thirds of each house of the general assembly to call a convention for the revision of the state constitution). Some state constitutions make no differentiation between amendments and revisions, and require supermajorities for any change to the constitution.
111. E.g., Ala. Const, art. XVIII, § 284.
112. Md. CONST, art. XIV, § 1.
113. See Patrick J. Egan & Kenneth Sherrill, California's Proposition 8: What Happened, and What Does the Future Hold? 16 (2009) (concluding that party identification, ideology, and religiosity played strong roles in determining the choice voters made on Proposition 8).
114. 410 U.S. 113(1973).
115. See David Barnhizer, Roe v. Wade and The Conflict Between Legal, Political and RELIGIOUS Truth 69 (2006) (describing the holding in Roe as the Supreme Court dropping a "political bomb on America in 1973").
116. See, e.g., Frédérick Douzet, Residential Segregation and Political Balkanization, in THE New Political Geography of California, supra note 61, at 45, 59 (noting the lifestyle considerations in California that drive affluent families to live in different areas than affluent individuals who are young with no children).
117. id. at 46 ("[A]s the population grows and gets more diverse, voters are sorting themselves along socio-economic, racial, cultural, and political lines.")
118. Ariane Zambiras, Shifts in the Religious Divide, in The New Political Geography of CALIFORNIA, supra note 61, at 71, 77, 80 (discussing the relocation of California's Evangelical Christian population and their resulting concentration in the Central Valley area).
119. See New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) (praising the notion that one state may enact experimental laws without affecting the rest of the states as one of the benefits of federalism).
120. See Charles Tiebout, A Pure Theory of Local Expenditures, 64 J. POL. ECON. 416, 424 (1956) (concluding that a fully mobile population of voters will be the determiner of the way in which the local government expends its resources).
121. See Bruce E. Cain & Kenneth P. Miller, The Populist Legacy: Initiatives and the Undermining of Representative Government, in DANGEROUS DEMOCRACY?: THE BATTLE OVER Ballot Initiatives in America 33, 38 (Larry Sabato et al. eds., 2001) ("In short, the Progressives sought to use the initiative to enhance the responsiveness, professionalism, competence, and expertise of government. By contrast, Populists sought, then as now, to substitute the wisdom of the people ... for the deliberations of elected officials.").
122. See Bruce E. Cain, Epilogue: Seeking Consensus Among Conflicting Electorates, in Governing California: Politics, Government, and Public policy in the Golden State 331, 338-40 (Gerald C. Lubenow & Bruce E. Cain eds., 1997) (noting that race and geography differences in the make-up of local constituencies versus the state-wide constituency creates two very distinct electorates, depending on whether a vote is local or statewide).
123. Id.; see also Cain & Miller, supra note 101, at 50-51 ("[T]he two constituencies problem ... can currently be seen most clearly in California.").
124. See Cain, supra note 102, at 337-40 (describing how the "two constituencies problem" in California results in a large minority influence in the legislature despite a predominantly white statewide electorate due to the way legislative districts are drawn).
125. Cal. Const, art. VI, § 16.
126. See id. ("Judges of the Supreme Court shall be elected at large and judges of courts of appeal shall be elected in their districts at general elections at the same time and places as the Governor.")
127. See Todd S. Purdum, Rose Bird, Once California's Chief Justice, Is Dead at 63, N.Y. TIMES, Dec. 6, 1999, at B18 (noting that Bird's "resolute opposition to the death penalty later led voters to remove her as chief justice").
128. Strauss v. Horton, No. S168047, 2009 WL 1444594 (Cal. May 26, 2009). While the court ruled that Proposition 8 was a valid amendment, it also limited its scope to the use of the word marriage, thereby permitting same-sex couples to enjoy the same rights as married couples, and refused to invalidate existing same-sex marriages. Id. at *65.
129. See generally Done Apollonio, Bruce E. Cain & Lee Drutman, Access and Lobbying: Looking Beyond the Corruption Paradigm, 36 HASTINGS CONST. L.Q. 13 (2008) (describing recent congressional efforts in lobbying reform).
130. 377 U.S. 533 (1964).
131. See Sanford Levinson, Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It) 34 (2006) ("Such 'little federalism' systems were swept aside in the 1964 Reynolds v. Sims decision by the Supreme Court, which stated that the Equal Protection Clause of the Fourteenth Amendment required the application of the 'one-person, one-vote' metric to both houses of a state legislature, and all states now comply with that decision.").
132. See Gerald Benjamin, The Mandatory Constitutional Convention Question Referendum, in 1 State Constitutions for the Twenty-first Century, supra note 11, at 145, 148 ("[Legislatures began as the dominant governmental institutions in the separation-of-powers systems of the American states.").
133. See id. (asserting that a main thrust of state constitutional change in America has been "diminution of the role and powers of legislatures").
134. Benjamin, supra note 12, at 192.
135. Id. at 194.
136. 1 State Constitutions for the Twenty-first Century, supra note 11, app. at 197 (describing the common features of state constitutional commissions).
137. See Benjamin, supra note 12, at 191-192 (noting that constitutional commissions without direct ballot access "are not effective mechanisms for bypassing the legislature to make constitutional changes opposed by those in control of the state government").
138. See Thad Beyle, The Executive Branch, in 3 STATE CONSTITUTIONS FOR THE TWENTY-FIRST CENTURY, supra note 11, at 67, 72-79 (enumerating the multiplicity of high executive officials in numerous states).
139. see also supra note 75 and accompanying text (describing California's own plural executive system).
140. Beyle, supra note 118, at 74-82.
141. See Richard C. Schragger, Essay, Can Strong Mayors Empower Weak Cities? On the Power of Local Executives in a Federal System, 115 Yale L.J. 2542, 2547 (2006) (noting that the National Municipal League in its first Model Charter endorsed a centralized executive "with an independent civil-service commission operating to counter the old spoils system").
142. See Rogan Kersh et al., "More a Distinction of Words Than Things": The Evolution of Separated Powers in the American States, 4 ROGER WILLIAMS U. L. REV. 5, 29 (1998) ("With popular and elite support for legislative dominance eroding during the nineteenth century, calls for a greater gubernatorial role in state administration increased commensurately. Progressive reformers spearheaded most of these drives.").
143. See Mark Fenster, Designing Transparency: The 9/11 Commission and Institutional Form, 65 Wash. & LEE L. Rev. 1239, 1247 n.23 (2008) (noting that independent regulatory commissions emerged during the Progressive Era that valued the "institutional model of expertise and independence").
144. See Beyle, supra note 118, at 69-72 (indicating that the gubernatorial budgetary power has decreased since the 1960s).
145. See, e.g., CAL. BUDGET PROJECT, SCHWARZENEGGER BUDGET PROPOSAL WOULD CAP Spending, Give Governors Unprecedented Power to Cut Spending 6 (2008), http://www.cbp.org/pdfs/2008/080513-Gov-Budget-Proposal.pdf (analyzing a proposal to grant the California Governor the power to enact midyear reductions in funding for programs and concluding that this reform would "substantially shift the power of critical budget decisions from the Legislature to the governor").
146. See Wes Clarke, Divided Government and Budget Conflict in the U.S., 23 LEGIS. STUD. Q. 5, 11 (1998) (describing how gubernatorial line-item veto powers function to significantly reduce legislators' ability to resist governors' policy preferences).
147. See Michael E. Libonati, Local Government, in 3 STATE CONSTITUTIONS FOR THE Twenty-first Century, supra note 11, at 109, 110-132 (positing that the tension between local and state government is best viewed through four dimensions: structure, function, fiscal, and personnel).
148. See Mildred Wigfall Robinson, Difficulties in Achieving Coherent State and Local Fiscal Policy at the Intersection of Direct Democracy and Republicanism: The Property Tax as a Case in Point, 35 U. MICH. J.L. REFORM 511, 515 (2002) (observing that the so-called "voter revolution" was spurred on in California "as a tax revolt, directed against the property tax").
149. See Frank S. Alexander, Inherent Tensions Between Home Rule and Regional Planning, 35 WAKE FOREST L. REV. 539, 540 (2000) ("Inherent tensions exist between the goals of regional planning embodied in smart growth and the basic proposition of home rule.").
150. See, e.g., Richard Briffault, Our Localism: Part II- Localism and Legal Theory, 90 COLUM. L. Rev. 346, 375-376 (1990) (characterizing special government institutions as allowing non-municipal localities to retain autonomy while receiving crucial government services).
151. Ronald F. Campbell, The Control of American Schools, 65 ELEMENTARY SCH. J. 120, 123 (1964) (describing the tension between a traditional cultural preference for local control and localities' need for state assistance to fund educational institutions).
152. See Libonati, supra note 126, at 119 (indicating that a study "reveals that, for local government, financial management is a realm of constraint").
153. See id. at 111 (noting that some state constitutions forbid the legislature from forcing a municipality to accept state-run utilities without its consent).
154. See id. at 112, 117-118 (pointing to Illinois as one state that guarantees local governments the right to contract with one another, but noting that, generally, such an express right is required for local governments to have such power).
155. Laurie Reynolds, Intergovernmental Cooperation, Metropolitan Equality, and the New Regionalism, 78 WASH. L. REV. 93, 97 (discussing how state statutes often frustrate the ability of local governments to enter into agreements with each other).
156. See Jennie Drage Bowser & Gary Moncrief, Term Limits in State Legislatures, in Institutional Change in American politics: The Case of Term Limits 10, 10-15 (Karl T. Kurtz, Bruce Cain & Richard G. Niemi eds., 2007) (providing examples of states that have imposed term limits by initiatives, such as California, Colorado, and Oklahoma, and providing examples of states that preclude ICAs and do not have term limits, such as Massachusetts, Washington, and Wyoming).
157. Karl T. Kurtz, Richard G. Niemi & Bruce Cain, Introduction to INSTITUTIONAL CHANGE in American Politics: The Case of Term Limits, supra note 133, at 1, 1.
158. See Thomas H. Little & Rick Farmer, Legislative Leadership, in INSTITUTIONAL CHANGE in American Politics: The Case of Term Limits, supra note 133, at 55, 68 (showing the decrease in legislative leadership caused by term limits).
159. Bruce Cain & Gerald Wright, Committees, in Institutional Change in American Politics: The Case of Term Limits, supra note 133, at 73, 79 (arguing that term limits have limited the effectiveness of legislative committees).
160. David R. Berman, Legislative Climate, in INSTITUTIONAL CHANGE IN AMERICAN Politics: The Case of Term Limits, supra note 133, at 107, 108.
161. See Nathaniel Persily & Melissa Cuily Anderson, Regulating Democracy Through Democracy: The Use of Direct Legislation in Election Law Reform, 78 S. CAL. L. Rev. 997, 1018 (2005) ("[D]irect democracy is hardly necessary for passage of [campaign finance] reforms.").
162. Id.
163. Id.
164. Bruce E. Cain, The Reapportionment Puzzle 1 (1984).
165. See id. at 2 (suggesting that redistricting can affect the legislators'
166. See id. at 108 (explaining how one California legislator was unwilling to surrender "the smaller, wealthier, and white communities [that] were important to his fund-raising efforts").
167. Id. at 116.
168. See id. at 112 (discussing how another California legislator demanded that the lines for his party's proposed redistricting plan "be drawn so as to include the house that he had recently purchased ... [because] [h]e was not prepared to move in order to keep his seat").
169. See Bill Stall, State Panel Proposes Government Shakeup, One-House Legislature, L.A. Times, Aug. 12, 1995, at A19 (stating the details of the unicameral legislature bill proposed)
170. State Panel Won't Push One-House Legislature, S.F. CHRON., Feb. 7, 1996, at A17 (explaining why the Constitution Revision Commission abandoned its efforts "after some former supporters expressed fears that the proposal would undermine chances that the Legislature would pass its other recommendations").
171. See Cain, supra note 72, at 60-61 (discussing Senators Alquist and Keene's push for the adoption of a parliamentary system as a solution to "the requirement of deliberation by two houses [that] often delayed the passage of bills significantly").
172. See id. (suggesting that the deliberation requirement "sometimes led to game playing and secret deals in conference committees").
173. See id. at 62 ("Many in the State Senate ... did not like the idea of only being one of 120 members, representing significantly smaller districts. Still others thought that they would get less staff resources if they were part of a larger house.").
174. See, e.g., Bowser & Moncrief, supra note 133, at 10-11 (explaining how many term-limit proposals have been in the form of initiatives rather than statutes).
175. See Brian Weberg & Karl T. Kurtz, Legislative Staff, in INSTITUTIONAL CHANGE IN American Politics: The Case of Term Limits, supra note 132, at 90, 99-100 (explaining that Proposition 140 had a devastating impact on California's legislature through a combination of term limits and budget cuts).
176. See Legislature v. Eu, 816 P.2d 1309, 1336 (Cal. 1991) (upholding Proposition 140 as constitutional).
177. See, e.g., Joseph W. Little, The Need to Revise the Florida Constitutional Revision Commission, 52 U. FLA. L. REV. 475, 475 (2000) (describing the Florida commissions responsible for amending its constitution)
178. See Richard Briffault, State and Local Finance, in 3 STATE CONSTITUTIONS FOR THE Twenty-first Century, supra note 11, at 213-28 (discussing some constitutional tools California and other states have used to restrict their legislatures' ability to raise and spend money, such as public purpose requirements for state spending, limitations on public debt for state and local governments, and limitations on state and local taxation).
179. Revan Tranter, Cities, Counties, and the State-From Prop. 13 to 218, in GOVERNING CALIFORNIA: POLITICS, GOVERNMENT, AND PUBLIC Policy in the Golden State, supra note 102, at 63, 63-68 (discussing the passage of Proposition 13 as a means of cutting taxes and government spending).
180. See generally Cheri Lucas Jennings & Bruce H. Jennings, Environment: California's Air, Water, and Land, in GOVERNING CALIFORNIA: POLITICS, GOVERNMENT, AND PUBLIC POLICY IN THE GOLDEN STATE, supra note 102, at 227, 232-233 (observing the growing importance of environmentalism to California voters in the 1980s and the approval of seven statewide ballot initiatives that earmarked $1.7 billion for environmental conservation programs).
181. Joseph D. McNamara, Criminal Justice: The Hottest Hot Button, in GOVERNING CALIFORNIA: POLITICS, GOVERNMENT, AND PUBLIC POLICY IN THE GOLDEN STATE, supra note 102, at 205, 213-14 (discussing how the three-strikes laws and other criminal justice enactments significantly increased the total expenditures for criminal justice in California).
182. Jordan Rau, With Bonds Approved, the Line for Billions Forms, L.A. TIMES, Nov. 9, 2006, at Al (discussing the adoption of Proposition ID, which, among other things, provided for $10.4 billion to modernize classrooms, and also noting California voters' approval of Proposition IB, which earmarked $19.9 billion "to improve roads and public transit").
183. See Cal. CONST, art. XVI, § 1 (setting a maximum interest rate on all general-obligation bonds and limiting the legislature's ability to incur debts of over $300, 000 in a variety of ways).
184. See Cain, supra note 102, at 331 (observing the legislature's inability to pass budgets on time or resolve "[m]ajor issues of the day such as health care and tort reform").
185. See CAL. CONST, art. IV, § 12(f) (barring the legislature from sending the Governor a budget bill for a fiscal year that exceeds the state's revenues for that fiscal year and barring the Governor from signing such a budget bill into law).