Due process and the Florida civil rights initiative

Temple Law Review

Volumn 74, Issue 3, 2001, Pages 595-632

  Carcieri, Martin D ^a  

^a UNIVERSITY OF TENNESSEE   (United States)

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EID: 9944227412     PISSN: 08998086     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (228)

1. Gratz v. Bollinger, 122 F. Supp. 2d 811 (E.D. Mich. 2000). In ruling for the university, however, Judge Patrick Duggan not only neglected to respond to the arguments of the National Association of Scholars ("NAS"), who filed an amicus curiae brief in support of the plaintiffs, id. at 824, but he consistently assumed that student body diversity is determined simply by race and ethnicity. Id. at 821-23. Furthermore, Judge Duggan assumed that proportional representation by race and ethnicity is a legitimate goal of government. Id. at 820, 824-25. Yet these assumptions are contrary to the very precedent on which Judge Duggan purports to rest his decision. As Justice Powell wrote in Regents of the Univ. of Cal. v. Bakke, "the nature of the state interest that would justify consideration of race or ethnic background...is not an interest in simply ethnic diversity in which a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups...." Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 315 (1978). It is thus doubtful that Judge Duggan will ultimately be affirmed on appeal. Three other developments in the federal courts are notable here. In Smith v. Univ. .of Washington, 233 F.3d 1188, 1190 (9th Cir. 2000), cert, denied, 121 S.Ct. 2192 (2001), the United States Court of Appeals for the Ninth Circuit ruled that though the permissibility of the university's affirmative action program is a moot issue given I-200, the state's recently enacted ban on such programs, the promotion of student body diversity remains a compelling state interest justifying such programs. By contrast, in Johnson v. Univ. of Georgia, 106 F. Supp. 2d 1362, 1372 (S.D. Ga. 2000), a federal district court ruled that diversity is not such an interest, and that the university's program of race preferences accordingly violates both Title VI and Title IX. See generally Marcia Coyle, It's Baaaa-ke!, NAT'L L.J., Jan. 22, 2001, at A1 (examining whether issue of diversity is compelling government interest that justifies race-based preferences in admission to higher education programs). Most recently, in Grutter v. Bollinger, 137 F. Supp. 2d 821, 832 (E.D. Mich. 2001), the companion case to Gratz, a federal district court also ruled that student body diversity is not a compelling state interest, and that even if it were, race and ethnic preferences are not narrowly tailored to advance it. It thus held that the preference scheme at the University of Michigan Law School violates the Fourteenth Amendment. Grutter, 137 F. Supp. 2d at 821. Given these developments, guidance from the United States Supreme Court in this area of law is now more urgent than ever.
2. See Hi-Voltage Wire Works v. San Jose, 12 P.3d 1068, 1084-86 (Ca. 2000) (rejecting degree of coercion imposed on prime contractors seeking to bid on city contracts and noting that coercion amounted to discrimination and preferences, both of which are expressly banned by Proposition 209, even though city program in question was referred to as mere "outreach"). Proposition 209 is now CAL. CONST, art. I, § 31. Following California's lead, voters in Washington enacted Initiative 200 in 1998. Sam Verhovek & B. Drummond Ayres, Washington State Voters Approve Initiative Limiting Affirmative Action, N. Y. TIMES, Nov. 4, 1998, at A1. Although Houston voters rejected a ban on "affirmative action" in 1997, that vote has been nullified due to the measure's ambiguous wording. See Blum v. Lanier, 997 S.W. 2d 259, 264 (Tex. 1999) (determining where language is misleading, district court may enjoin city from using ballot that purports to end affirmative action for women and minorities).
3. Governor Jeb Bush, ONE FLORIDA INITIATIVE, at http://www.msnbc.com/locaywtvj/161374.asp. Specifically, the executive order ("One Florida") terminates race and ethnicity preferences in public university admissions and race, ethnicity, and gender preferences in state contracting, and replaces them with various measures and investments designed to maintain diversity in those contexts. Id. In the education context, these include a guarantee of state university admission to any high school student completing at least 19 units of advanced placement courses and graduating in the top 20% of his high school class (the "Talented Twenty" program), an increase in need-based financial aid, monetary incentives for high school teachers who successfully teach AP courses, and increased College Board training of teachers at low-performing high schools. Id. In the contracting context, the measures include direct accountability of procurement officers to the Governor, registration and certification of minority-owned businesses, financial and technical assistance to such businesses, provision of incentives for businesses to hire employees in historically underutilized business zones, and vigorous enforcement of antidiscrimination law. Id. Though a spokesman for Governor Bush notes that in the wake of One Florida the Governor has "increased the number of state contracts awarded to minority contractors [and] put far more minorities into Florida's university system without lowering admissions standards," many believe that race relations are worse than ever. Thomas B. Pfankuch, Leaders See Race Relations Worsening, FLA. TIMES-UNION, Mar. 6, 2001, at Al.
4. Governor Jeb Bush, ONE FLORIDA INITIATIVE, at http://www.msnbc.com/locaywtvj/161374.asp. Specifically, the executive order ("One Florida") terminates race and ethnicity preferences in public university admissions and race, ethnicity, and gender preferences in state contracting, and replaces them with various measures and investments designed to maintain diversity in those contexts. Id. In the education context, these include a guarantee of state university admission to any high school student completing at least 19 units of advanced placement courses and graduating in the top 20% of his high school class (the "Talented Twenty" program), an increase in need-based financial aid, monetary incentives for high school teachers who successfully teach AP courses, and increased College Board training of teachers at low-performing high schools. Id. In the contracting context, the measures include direct accountability of procurement officers to the Governor, registration and certification of minority-owned businesses, financial and technical assistance to such businesses, provision of incentives for businesses to hire employees in historically underutilized business zones, and vigorous enforcement of antidiscrimination law. Id. Though a spokesman for Governor Bush notes that in the wake of One Florida the Governor has "increased the number of state contracts awarded to minority contractors [and] put far more minorities into Florida's university system without lowering admissions standards," many believe that race relations are worse than ever. Thomas B. Pfankuch, Leaders See Race Relations Worsening, FLA. TIMES-UNION, Mar. 6, 2001, at Al.
5. See Palm Beach Canvassing Bd. v. Harris, 772 So. 2d 1273, 1283 (Fla. 2000) (examining declaratory judgment action requiring manual recounts of Democratic Presidential Candidate and certification of recount results; and determining Secretary of State could exercise discretion in determining acceptance of late return); Gore v. Harris, 773 So. 2d 524, 526 (Fla. 2000) (determining specific uniform standard necessary to ensure equal application and secure fundamental right to vote in Florida left to legislature).
6. Amendment to Ban Government from Treating People Differently Based on Race in Public Education, Amendment to Bar Government from Treating People Differently Based on Race in Public Employment, Amendment to Bar Government from Treating People Differently Based on Race in Public Contracting, and End Governmental Discrimination and Preferences Amendment, Op. Att'y Gen., 778 So. 2d 888 (Fla. 2000) [hereinafter FCRI Advisory Opinion]. While the court was unanimous in its ruling, Justice Shaw filed a concurrence, FCRI Advisory Opinion, 778 So. 2d at 900-06, parts of which we shall consider as they are relevant.
7. See FLA. CONST, art. IV, § 10 (stating Attorney General shall consult supreme court as to validity of any initiative petition pursuant to art. II, § 3; and Justices shall permit hearings and render opinions expeditiously); FLA. STAT. ANN. § 16.061 (West Supp. 2001) (stating Secretary of State should petition supreme court within thirty days of proposed revision or amendment to state constitution).
8. See FLA. CONST, art. XI, § 3 (stating power to propose amendment is reserved to people provided amendment shall embrace one subject matter directly connected therewith).
9. FLA. STAT. ANN. § 101.161 (West Supp. 2001).
10. FLA. CONST, art. XI, § 3. See also FLA. CONST, art. III, § 6 (applying single subject rule to legislation). But see Fine v. Firestone, 448 So. 2d 984, 988-89 (Fla. 1984) (determining single subject rule is not enforced as strictly with respect to legislation as is rule governing ballot initiatives).
11. Fine, 448 So. 2d at 988-89 (Fla. 1984). See also In re Save Our Everglades, 636 So. 2d 1336, 1339 (Fla. 1994) (describing single subject rule as one of restraint purporting to allow citizens to vote on singular changes in functions of government structure).
12. FCRI Advisory Opinion, 778 So. 2d 888,892 (Fla. 2000).
13. See id. (stating how proposal applies to separate branches of government).
14. See In re Tax Limitation 1,644 So. 2d 486, 494-95 (Fla. 1994) (advisory opinion) (determining initiative alters functions of executive and legislative branches of State government and has distinct effect on each local governmental entity); In re Restricts Laws Against Discrimination, 632 So. 2d 1018, 1020 (Fla. 1994) (determining court must consider whether proposal affects separate functions of government in order to comply with single subject rule).
15. FCRI Advisory Opinion, 778 So. 2d at 892.
16. In re Limited Political Terms in Certain Elective Offices, 592 So. 2d 225, 231-32 (Fla. 1991) (Kogan, J., concurring in part and dissenting in part).
17. Fla. Slat. Ann. § 101.161. (West Supp. 2001).
18. Armstrong v. Harris, 773 So. 2d 7, 15 (Fla. 2000) (quoting Grose v. Firestone, 422 So. 2d 303, 305 (Fla. 1982)). See also In re Term Limits Pledge, 718 So. 2d 798, 803 (Fla. 1998) (determining title and summary must be accurate and informative). The court has concluded that the purpose of the statute was "to provide fair notice of the content of the proposed amendment so that the voter will not be misled as to its purpose, and can cast an intelligent and informed ballot." Id. (quoting Advisory Opinion to the Attorney Gen. re Right of Citizens to Choose Health Care Providers, 705 So. 2d 563, 566 (Fla. 1998)). It should be added that unlike the single subject rule, applicable only to citizens' ballot initiatives, the ballot title and summary provisions apply to all proposed amendments, regardless of whether they originate in the people, the legislature, a revision commission, or a constitutional convention. FLA. CONST, art XI, §§ 1-5; see Armstrong, 773 So. 2d at 16 (stating ballot and title summary cannot "hide the ball" as to amendment's true effect).
19. In re Tax Limitation I, 644 So. 2d at 490 (quoting Askew v. Firestone, 421 So. 2d 151, 156 (Fla. 1982)).
20. It is, of course, a perennial question whether advancing democracy is a valid goal within our constitutional regime. Because we have an essentially republican system, it has been argued, the initiative process is too democratic, perhaps even unconstitutionally so. As Professor Gordon writes, for example, "[r]estricting the initiative proposal in Florida even further than the current single subject and other requirements would help preserve the constitution, republicanism, and respect for pluralism and diversity." Daniel R. Gordon, Protecting Against the State Constitutional Junkyard: Proposals to Limit Popular Constitutional Revision in Florida, 20 NOVA L. REV. 413, 434 (1995). See also Catherine A. Rogers & David L. Faigman, And to the Republic for Which it Stands: Guaranteeing a Republican Form of Government, 23 HASTINGS CONST. L.Q. 1057, 1059 (1996) (arguing initiative process is per se violation of Republican Guaranty clause of Article IV, section 4 of United States Constitution); Hans A. Linde, When is Initiative Lawmaking Not "Republican Government"?, 17 HASTINGS CONST. L.Q. 159, 160-61 (1989) (arguing although Supreme Court declined to interpret meaning of constitution's "republican form of government," state courts may decide claims of unrepublican state acts). On the other hand, Tocqueville observed nearly two centuries ago that the United States is perhaps the best example of the western trend, extending back nearly a millennium, toward democratization. ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 36 (Richard D. Heffner ed., 1960). Indeed, five of the eleven amendments to the United States Constitution since 1913 have functioned to extend the franchise to previously disenfranchised groups, thus suggesting a broad movement of American constitutionalism toward an increased emphasis on democratic process. JOHN HART ELY, DEMOCRACY AND DISTRUST 99 (1981). With particular reference to the initiative process, Professor Lazos Vargas observes that "direct democracy is embedded in our civic democracy." Sylvia Lazos Vargas, Judicial Review of Initiatives and Referendums in Which Majorities Vote on Minorities' Democratic Citizenship, 60 OHIO ST. L.J. 399, 406 n.26 (1999). Indeed, the initiative process is in place in twenty-four states, Richard B. Collins & Dale Oesterle, Structuring the Ballot Initiative: Procedures that Do and Don't Work, 66 U. COLO. L. REV. 47, 54 (1995), and the first sentence of the Florida Declaration of Rights provides that "[a]ll political power is inherent in the people." FLA. CONST, art. I, § 1. As the court has recently ruled, accordingly, "[u]nder our constitutional form of government in Florida, the legislature is authorized to enact statutory laws and the courts can define the common law, but only the people - by direct vote - can delineate the organic law." Armstrong, 773 So. 2d at 22. (emphasis added). As Leonard thus observes, "after several decades of experience with the initiative, it is clear that direct legislation has not brought about the collapse of representative government." Ame R. Leonard, In Search of the Deliberative Initiative: A Proposal for a New Method of Constitutional Change, 69 TEMP. L. REV. 1203, 1221 (1996). As a matter of Florida legal history, Professor Marks observes of the inclusion of the initiative process in the 1968 Revision of the Florida Constitution that "[i]t is generally believed that decades of abuses perpetrated by a badly malapportioned legislature figured heavily in the decision to give the people a shot at constitutional change that did not involve that body." Thomas Marks, Constitutional Change Initiated by the People: One State's Unhappy Experience, 68 TEMP. L. REV. 1241, 1246 (1995). Moreover, Professor Little has argued that it is the legislature, not the citizens' ballot initiative, that is the greater threat to the Florida Constitution as it "tend(s) to use its power to propose constitutional amendments as a means to move contentious, legislative proposals to a vote of the people in the guise of amending the constitution." Joseph Little, Does Direct Democracy Threaten Constitutional Governance in Florida?, 24 STETSON L. REV. 393, 398 (1995).
21. It is, of course, a perennial question whether advancing democracy is a valid goal within our constitutional regime. Because we have an essentially republican system, it has been argued, the initiative process is too democratic, perhaps even unconstitutionally so. As Professor Gordon writes, for example, "[r]estricting the initiative proposal in Florida even further than the current single subject and other requirements would help preserve the constitution, republicanism, and respect for pluralism and diversity." Daniel R. Gordon, Protecting Against the State Constitutional Junkyard: Proposals to Limit Popular Constitutional Revision in Florida, 20 NOVA L. REV. 413, 434 (1995). See also Catherine A. Rogers & David L. Faigman, And to the Republic for Which it Stands: Guaranteeing a Republican Form of Government, 23 HASTINGS CONST. L.Q. 1057, 1059 (1996) (arguing initiative process is per se violation of Republican Guaranty clause of Article IV, section 4 of United States Constitution); Hans A. Linde, When is Initiative Lawmaking Not "Republican Government"?, 17 HASTINGS CONST. L.Q. 159, 160-61 (1989) (arguing although Supreme Court declined to interpret meaning of constitution's "republican form of government," state courts may decide claims of unrepublican state acts). On the other hand, Tocqueville observed nearly two centuries ago that the United States is perhaps the best example of the western trend, extending back nearly a millennium, toward democratization. ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 36 (Richard D. Heffner ed., 1960). Indeed, five of the eleven amendments to the United States Constitution since 1913 have functioned to extend the franchise to previously disenfranchised groups, thus suggesting a broad movement of American constitutionalism toward an increased emphasis on democratic process. JOHN HART ELY, DEMOCRACY AND DISTRUST 99 (1981). With particular reference to the initiative process, Professor Lazos Vargas observes that "direct democracy is embedded in our civic democracy." Sylvia Lazos Vargas, Judicial Review of Initiatives and Referendums in Which Majorities Vote on Minorities' Democratic Citizenship, 60 OHIO ST. L.J. 399, 406 n.26 (1999). Indeed, the initiative process is in place in twenty-four states, Richard B. Collins & Dale Oesterle, Structuring the Ballot Initiative: Procedures that Do and Don't Work, 66 U. COLO. L. REV. 47, 54 (1995), and the first sentence of the Florida Declaration of Rights provides that "[a]ll political power is inherent in the people." FLA. CONST, art. I, § 1. As the court has recently ruled, accordingly, "[u]nder our constitutional form of government in Florida, the legislature is authorized to enact statutory laws and the courts can define the common law, but only the people - by direct vote - can delineate the organic law." Armstrong, 773 So. 2d at 22. (emphasis added). As Leonard thus observes, "after several decades of experience with the initiative, it is clear that direct legislation has not brought about the collapse of representative government." Ame R. Leonard, In Search of the Deliberative Initiative: A Proposal for a New Method of Constitutional Change, 69 TEMP. L. REV. 1203, 1221 (1996). As a matter of Florida legal history, Professor Marks observes of the inclusion of the initiative process in the 1968 Revision of the Florida Constitution that "[i]t is generally believed that decades of abuses perpetrated by a badly malapportioned legislature figured heavily in the decision to give the people a shot at constitutional change that did not involve that body." Thomas Marks, Constitutional Change Initiated by the People: One State's Unhappy Experience, 68 TEMP. L. REV. 1241, 1246 (1995). Moreover, Professor Little has argued that it is the legislature, not the citizens' ballot initiative, that is the greater threat to the Florida Constitution as it "tend(s) to use its power to propose constitutional amendments as a means to move contentious, legislative proposals to a vote of the people in the guise of amending the constitution." Joseph Little, Does Direct Democracy Threaten Constitutional Governance in Florida?, 24 STETSON L. REV. 393, 398 (1995).
22. It is, of course, a perennial question whether advancing democracy is a valid goal within our constitutional regime. Because we have an essentially republican system, it has been argued, the initiative process is too democratic, perhaps even unconstitutionally so. As Professor Gordon writes, for example, "[r]estricting the initiative proposal in Florida even further than the current single subject and other requirements would help preserve the constitution, republicanism, and respect for pluralism and diversity." Daniel R. Gordon, Protecting Against the State Constitutional Junkyard: Proposals to Limit Popular Constitutional Revision in Florida, 20 NOVA L. REV. 413, 434 (1995). See also Catherine A. Rogers & David L. Faigman, And to the Republic for Which it Stands: Guaranteeing a Republican Form of Government, 23 HASTINGS CONST. L.Q. 1057, 1059 (1996) (arguing initiative process is per se violation of Republican Guaranty clause of Article IV, section 4 of United States Constitution); Hans A. Linde, When is Initiative Lawmaking Not "Republican Government"?, 17 HASTINGS CONST. L.Q. 159, 160-61 (1989) (arguing although Supreme Court declined to interpret meaning of constitution's "republican form of government," state courts may decide claims of unrepublican state acts). On the other hand, Tocqueville observed nearly two centuries ago that the United States is perhaps the best example of the western trend, extending back nearly a millennium, toward democratization. ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 36 (Richard D. Heffner ed., 1960). Indeed, five of the eleven amendments to the United States Constitution since 1913 have functioned to extend the franchise to previously disenfranchised groups, thus suggesting a broad movement of American constitutionalism toward an increased emphasis on democratic process. JOHN HART ELY, DEMOCRACY AND DISTRUST 99 (1981). With particular reference to the initiative process, Professor Lazos Vargas observes that "direct democracy is embedded in our civic democracy." Sylvia Lazos Vargas, Judicial Review of Initiatives and Referendums in Which Majorities Vote on Minorities' Democratic Citizenship, 60 OHIO ST. L.J. 399, 406 n.26 (1999). Indeed, the initiative process is in place in twenty-four states, Richard B. Collins & Dale Oesterle, Structuring the Ballot Initiative: Procedures that Do and Don't Work, 66 U. COLO. L. REV. 47, 54 (1995), and the first sentence of the Florida Declaration of Rights provides that "[a]ll political power is inherent in the people." FLA. CONST, art. I, § 1. As the court has recently ruled, accordingly, "[u]nder our constitutional form of government in Florida, the legislature is authorized to enact statutory laws and the courts can define the common law, but only the people - by direct vote - can delineate the organic law." Armstrong, 773 So. 2d at 22. (emphasis added). As Leonard thus observes, "after several decades of experience with the initiative, it is clear that direct legislation has not brought about the collapse of representative government." Ame R. Leonard, In Search of the Deliberative Initiative: A Proposal for a New Method of Constitutional Change, 69 TEMP. L. REV. 1203, 1221 (1996). As a matter of Florida legal history, Professor Marks observes of the inclusion of the initiative process in the 1968 Revision of the Florida Constitution that "[i]t is generally believed that decades of abuses perpetrated by a badly malapportioned legislature figured heavily in the decision to give the people a shot at constitutional change that did not involve that body." Thomas Marks, Constitutional Change Initiated by the People: One State's Unhappy Experience, 68 TEMP. L. REV. 1241, 1246 (1995). Moreover, Professor Little has argued that it is the legislature, not the citizens' ballot initiative, that is the greater threat to the Florida Constitution as it "tend(s) to use its power to propose constitutional amendments as a means to move contentious, legislative proposals to a vote of the people in the guise of amending the constitution." Joseph Little, Does Direct Democracy Threaten Constitutional Governance in Florida?, 24 STETSON L. REV. 393, 398 (1995).
23. It is, of course, a perennial question whether advancing democracy is a valid goal within our constitutional regime. Because we have an essentially republican system, it has been argued, the initiative process is too democratic, perhaps even unconstitutionally so. As Professor Gordon writes, for example, "[r]estricting the initiative proposal in Florida even further than the current single subject and other requirements would help preserve the constitution, republicanism, and respect for pluralism and diversity." Daniel R. Gordon, Protecting Against the State Constitutional Junkyard: Proposals to Limit Popular Constitutional Revision in Florida, 20 NOVA L. REV. 413, 434 (1995). See also Catherine A. Rogers & David L. Faigman, And to the Republic for Which it Stands: Guaranteeing a Republican Form of Government, 23 HASTINGS CONST. L.Q. 1057, 1059 (1996) (arguing initiative process is per se violation of Republican Guaranty clause of Article IV, section 4 of United States Constitution); Hans A. Linde, When is Initiative Lawmaking Not "Republican Government"?, 17 HASTINGS CONST. L.Q. 159, 160-61 (1989) (arguing although Supreme Court declined to interpret meaning of constitution's "republican form of government," state courts may decide claims of unrepublican state acts). On the other hand, Tocqueville observed nearly two centuries ago that the United States is perhaps the best example of the western trend, extending back nearly a millennium, toward democratization. ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 36 (Richard D. Heffner ed., 1960). Indeed, five of the eleven amendments to the United States Constitution since 1913 have functioned to extend the franchise to previously disenfranchised groups, thus suggesting a broad movement of American constitutionalism toward an increased emphasis on democratic process. JOHN HART ELY, DEMOCRACY AND DISTRUST 99 (1981). With particular reference to the initiative process, Professor Lazos Vargas observes that "direct democracy is embedded in our civic democracy." Sylvia Lazos Vargas, Judicial Review of Initiatives and Referendums in Which Majorities Vote on Minorities' Democratic Citizenship, 60 OHIO ST. L.J. 399, 406 n.26 (1999). Indeed, the initiative process is in place in twenty-four states, Richard B. Collins & Dale Oesterle, Structuring the Ballot Initiative: Procedures that Do and Don't Work, 66 U. COLO. L. REV. 47, 54 (1995), and the first sentence of the Florida Declaration of Rights provides that "[a]ll political power is inherent in the people." FLA. CONST, art. I, § 1. As the court has recently ruled, accordingly, "[u]nder our constitutional form of government in Florida, the legislature is authorized to enact statutory laws and the courts can define the common law, but only the people - by direct vote - can delineate the organic law." Armstrong, 773 So. 2d at 22. (emphasis added). As Leonard thus observes, "after several decades of experience with the initiative, it is clear that direct legislation has not brought about the collapse of representative government." Ame R. Leonard, In Search of the Deliberative Initiative: A Proposal for a New Method of Constitutional Change, 69 TEMP. L. REV. 1203, 1221 (1996). As a matter of Florida legal history, Professor Marks observes of the inclusion of the initiative process in the 1968 Revision of the Florida Constitution that "[i]t is generally believed that decades of abuses perpetrated by a badly malapportioned legislature figured heavily in the decision to give the people a shot at constitutional change that did not involve that body." Thomas Marks, Constitutional Change Initiated by the People: One State's Unhappy Experience, 68 TEMP. L. REV. 1241, 1246 (1995). Moreover, Professor Little has argued that it is the legislature, not the citizens' ballot initiative, that is the greater threat to the Florida Constitution as it "tend(s) to use its power to propose constitutional amendments as a means to move contentious, legislative proposals to a vote of the people in the guise of amending the constitution." Joseph Little, Does Direct Democracy Threaten Constitutional Governance in Florida?, 24 STETSON L. REV. 393, 398 (1995).
24. It is, of course, a perennial question whether advancing democracy is a valid goal within our constitutional regime. Because we have an essentially republican system, it has been argued, the initiative process is too democratic, perhaps even unconstitutionally so. As Professor Gordon writes, for example, "[r]estricting the initiative proposal in Florida even further than the current single subject and other requirements would help preserve the constitution, republicanism, and respect for pluralism and diversity." Daniel R. Gordon, Protecting Against the State Constitutional Junkyard: Proposals to Limit Popular Constitutional Revision in Florida, 20 NOVA L. REV. 413, 434 (1995). See also Catherine A. Rogers & David L. Faigman, And to the Republic for Which it Stands: Guaranteeing a Republican Form of Government, 23 HASTINGS CONST. L.Q. 1057, 1059 (1996) (arguing initiative process is per se violation of Republican Guaranty clause of Article IV, section 4 of United States Constitution); Hans A. Linde, When is Initiative Lawmaking Not "Republican Government"?, 17 HASTINGS CONST. L.Q. 159, 160-61 (1989) (arguing although Supreme Court declined to interpret meaning of constitution's "republican form of government," state courts may decide claims of unrepublican state acts). On the other hand, Tocqueville observed nearly two centuries ago that the United States is perhaps the best example of the western trend, extending back nearly a millennium, toward democratization. ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 36 (Richard D. Heffner ed., 1960). Indeed, five of the eleven amendments to the United States Constitution since 1913 have functioned to extend the franchise to previously disenfranchised groups, thus suggesting a broad movement of American constitutionalism toward an increased emphasis on democratic process. JOHN HART ELY, DEMOCRACY AND DISTRUST 99 (1981). With particular reference to the initiative process, Professor Lazos Vargas observes that "direct democracy is embedded in our civic democracy." Sylvia Lazos Vargas, Judicial Review of Initiatives and Referendums in Which Majorities Vote on Minorities' Democratic Citizenship, 60 OHIO ST. L.J. 399, 406 n.26 (1999). Indeed, the initiative process is in place in twenty-four states, Richard B. Collins & Dale Oesterle, Structuring the Ballot Initiative: Procedures that Do and Don't Work, 66 U. COLO. L. REV. 47, 54 (1995), and the first sentence of the Florida Declaration of Rights provides that "[a]ll political power is inherent in the people." FLA. CONST, art. I, § 1. As the court has recently ruled, accordingly, "[u]nder our constitutional form of government in Florida, the legislature is authorized to enact statutory laws and the courts can define the common law, but only the people - by direct vote - can delineate the organic law." Armstrong, 773 So. 2d at 22. (emphasis added). As Leonard thus observes, "after several decades of experience with the initiative, it is clear that direct legislation has not brought about the collapse of representative government." Ame R. Leonard, In Search of the Deliberative Initiative: A Proposal for a New Method of Constitutional Change, 69 TEMP. L. REV. 1203, 1221 (1996). As a matter of Florida legal history, Professor Marks observes of the inclusion of the initiative process in the 1968 Revision of the Florida Constitution that "[i]t is generally believed that decades of abuses perpetrated by a badly malapportioned legislature figured heavily in the decision to give the people a shot at constitutional change that did not involve that body." Thomas Marks, Constitutional Change Initiated by the People: One State's Unhappy Experience, 68 TEMP. L. REV. 1241, 1246 (1995). Moreover, Professor Little has argued that it is the legislature, not the citizens' ballot initiative, that is the greater threat to the Florida Constitution as it "tend(s) to use its power to propose constitutional amendments as a means to move contentious, legislative proposals to a vote of the people in the guise of amending the constitution." Joseph Little, Does Direct Democracy Threaten Constitutional Governance in Florida?, 24 STETSON L. REV. 393, 398 (1995).
25. It is, of course, a perennial question whether advancing democracy is a valid goal within our constitutional regime. Because we have an essentially republican system, it has been argued, the initiative process is too democratic, perhaps even unconstitutionally so. As Professor Gordon writes, for example, "[r]estricting the initiative proposal in Florida even further than the current single subject and other requirements would help preserve the constitution, republicanism, and respect for pluralism and diversity." Daniel R. Gordon, Protecting Against the State Constitutional Junkyard: Proposals to Limit Popular Constitutional Revision in Florida, 20 NOVA L. REV. 413, 434 (1995). See also Catherine A. Rogers & David L. Faigman, And to the Republic for Which it Stands: Guaranteeing a Republican Form of Government, 23 HASTINGS CONST. L.Q. 1057, 1059 (1996) (arguing initiative process is per se violation of Republican Guaranty clause of Article IV, section 4 of United States Constitution); Hans A. Linde, When is Initiative Lawmaking Not "Republican Government"?, 17 HASTINGS CONST. L.Q. 159, 160-61 (1989) (arguing although Supreme Court declined to interpret meaning of constitution's "republican form of government," state courts may decide claims of unrepublican state acts). On the other hand, Tocqueville observed nearly two centuries ago that the United States is perhaps the best example of the western trend, extending back nearly a millennium, toward democratization. ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 36 (Richard D. Heffner ed., 1960). Indeed, five of the eleven amendments to the United States Constitution since 1913 have functioned to extend the franchise to previously disenfranchised groups, thus suggesting a broad movement of American constitutionalism toward an increased emphasis on democratic process. JOHN HART ELY, DEMOCRACY AND DISTRUST 99 (1981). With particular reference to the initiative process, Professor Lazos Vargas observes that "direct democracy is embedded in our civic democracy." Sylvia Lazos Vargas, Judicial Review of Initiatives and Referendums in Which Majorities Vote on Minorities' Democratic Citizenship, 60 OHIO ST. L.J. 399, 406 n.26 (1999). Indeed, the initiative process is in place in twenty-four states, Richard B. Collins & Dale Oesterle, Structuring the Ballot Initiative: Procedures that Do and Don't Work, 66 U. COLO. L. REV. 47, 54 (1995), and the first sentence of the Florida Declaration of Rights provides that "[a]ll political power is inherent in the people." FLA. CONST, art. I, § 1. As the court has recently ruled, accordingly, "[u]nder our constitutional form of government in Florida, the legislature is authorized to enact statutory laws and the courts can define the common law, but only the people - by direct vote - can delineate the organic law." Armstrong, 773 So. 2d at 22. (emphasis added). As Leonard thus observes, "after several decades of experience with the initiative, it is clear that direct legislation has not brought about the collapse of representative government." Ame R. Leonard, In Search of the Deliberative Initiative: A Proposal for a New Method of Constitutional Change, 69 TEMP. L. REV. 1203, 1221 (1996). As a matter of Florida legal history, Professor Marks observes of the inclusion of the initiative process in the 1968 Revision of the Florida Constitution that "[i]t is generally believed that decades of abuses perpetrated by a badly malapportioned legislature figured heavily in the decision to give the people a shot at constitutional change that did not involve that body." Thomas Marks, Constitutional Change Initiated by the People: One State's Unhappy Experience, 68 TEMP. L. REV. 1241, 1246 (1995). Moreover, Professor Little has argued that it is the legislature, not the citizens' ballot initiative, that is the greater threat to the Florida Constitution as it "tend(s) to use its power to propose constitutional amendments as a means to move contentious, legislative proposals to a vote of the people in the guise of amending the constitution." Joseph Little, Does Direct Democracy Threaten Constitutional Governance in Florida?, 24 STETSON L. REV. 393, 398 (1995).
26. It is, of course, a perennial question whether advancing democracy is a valid goal within our constitutional regime. Because we have an essentially republican system, it has been argued, the initiative process is too democratic, perhaps even unconstitutionally so. As Professor Gordon writes, for example, "[r]estricting the initiative proposal in Florida even further than the current single subject and other requirements would help preserve the constitution, republicanism, and respect for pluralism and diversity." Daniel R. Gordon, Protecting Against the State Constitutional Junkyard: Proposals to Limit Popular Constitutional Revision in Florida, 20 NOVA L. REV. 413, 434 (1995). See also Catherine A. Rogers & David L. Faigman, And to the Republic for Which it Stands: Guaranteeing a Republican Form of Government, 23 HASTINGS CONST. L.Q. 1057, 1059 (1996) (arguing initiative process is per se violation of Republican Guaranty clause of Article IV, section 4 of United States Constitution); Hans A. Linde, When is Initiative Lawmaking Not "Republican Government"?, 17 HASTINGS CONST. L.Q. 159, 160-61 (1989) (arguing although Supreme Court declined to interpret meaning of constitution's "republican form of government," state courts may decide claims of unrepublican state acts). On the other hand, Tocqueville observed nearly two centuries ago that the United States is perhaps the best example of the western trend, extending back nearly a millennium, toward democratization. ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 36 (Richard D. Heffner ed., 1960). Indeed, five of the eleven amendments to the United States Constitution since 1913 have functioned to extend the franchise to previously disenfranchised groups, thus suggesting a broad movement of American constitutionalism toward an increased emphasis on democratic process. JOHN HART ELY, DEMOCRACY AND DISTRUST 99 (1981). With particular reference to the initiative process, Professor Lazos Vargas observes that "direct democracy is embedded in our civic democracy." Sylvia Lazos Vargas, Judicial Review of Initiatives and Referendums in Which Majorities Vote on Minorities' Democratic Citizenship, 60 OHIO ST. L.J. 399, 406 n.26 (1999). Indeed, the initiative process is in place in twenty-four states, Richard B. Collins & Dale Oesterle, Structuring the Ballot Initiative: Procedures that Do and Don't Work, 66 U. COLO. L. REV. 47, 54 (1995), and the first sentence of the Florida Declaration of Rights provides that "[a]ll political power is inherent in the people." FLA. CONST, art. I, § 1. As the court has recently ruled, accordingly, "[u]nder our constitutional form of government in Florida, the legislature is authorized to enact statutory laws and the courts can define the common law, but only the people - by direct vote - can delineate the organic law." Armstrong, 773 So. 2d at 22. (emphasis added). As Leonard thus observes, "after several decades of experience with the initiative, it is clear that direct legislation has not brought about the collapse of representative government." Ame R. Leonard, In Search of the Deliberative Initiative: A Proposal for a New Method of Constitutional Change, 69 TEMP. L. REV. 1203, 1221 (1996). As a matter of Florida legal history, Professor Marks observes of the inclusion of the initiative process in the 1968 Revision of the Florida Constitution that "[i]t is generally believed that decades of abuses perpetrated by a badly malapportioned legislature figured heavily in the decision to give the people a shot at constitutional change that did not involve that body." Thomas Marks, Constitutional Change Initiated by the People: One State's Unhappy Experience, 68 TEMP. L. REV. 1241, 1246 (1995). Moreover, Professor Little has argued that it is the legislature, not the citizens' ballot initiative, that is the greater threat to the Florida Constitution as it "tend(s) to use its power to propose constitutional amendments as a means to move contentious, legislative proposals to a vote of the people in the guise of amending the constitution." Joseph Little, Does Direct Democracy Threaten Constitutional Governance in Florida?, 24 STETSON L. REV. 393, 398 (1995).
27. It is, of course, a perennial question whether advancing democracy is a valid goal within our constitutional regime. Because we have an essentially republican system, it has been argued, the initiative process is too democratic, perhaps even unconstitutionally so. As Professor Gordon writes, for example, "[r]estricting the initiative proposal in Florida even further than the current single subject and other requirements would help preserve the constitution, republicanism, and respect for pluralism and diversity." Daniel R. Gordon, Protecting Against the State Constitutional Junkyard: Proposals to Limit Popular Constitutional Revision in Florida, 20 NOVA L. REV. 413, 434 (1995). See also Catherine A. Rogers & David L. Faigman, And to the Republic for Which it Stands: Guaranteeing a Republican Form of Government, 23 HASTINGS CONST. L.Q. 1057, 1059 (1996) (arguing initiative process is per se violation of Republican Guaranty clause of Article IV, section 4 of United States Constitution); Hans A. Linde, When is Initiative Lawmaking Not "Republican Government"?, 17 HASTINGS CONST. L.Q. 159, 160-61 (1989) (arguing although Supreme Court declined to interpret meaning of constitution's "republican form of government," state courts may decide claims of unrepublican state acts). On the other hand, Tocqueville observed nearly two centuries ago that the United States is perhaps the best example of the western trend, extending back nearly a millennium, toward democratization. ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 36 (Richard D. Heffner ed., 1960). Indeed, five of the eleven amendments to the United States Constitution since 1913 have functioned to extend the franchise to previously disenfranchised groups, thus suggesting a broad movement of American constitutionalism toward an increased emphasis on democratic process. JOHN HART ELY, DEMOCRACY AND DISTRUST 99 (1981). With particular reference to the initiative process, Professor Lazos Vargas observes that "direct democracy is embedded in our civic democracy." Sylvia Lazos Vargas, Judicial Review of Initiatives and Referendums in Which Majorities Vote on Minorities' Democratic Citizenship, 60 OHIO ST. L.J. 399, 406 n.26 (1999). Indeed, the initiative process is in place in twenty-four states, Richard B. Collins & Dale Oesterle, Structuring the Ballot Initiative: Procedures that Do and Don't Work, 66 U. COLO. L. REV. 47, 54 (1995), and the first sentence of the Florida Declaration of Rights provides that "[a]ll political power is inherent in the people." FLA. CONST, art. I, § 1. As the court has recently ruled, accordingly, "[u]nder our constitutional form of government in Florida, the legislature is authorized to enact statutory laws and the courts can define the common law, but only the people - by direct vote - can delineate the organic law." Armstrong, 773 So. 2d at 22. (emphasis added). As Leonard thus observes, "after several decades of experience with the initiative, it is clear that direct legislation has not brought about the collapse of representative government." Ame R. Leonard, In Search of the Deliberative Initiative: A Proposal for a New Method of Constitutional Change, 69 TEMP. L. REV. 1203, 1221 (1996). As a matter of Florida legal history, Professor Marks observes of the inclusion of the initiative process in the 1968 Revision of the Florida Constitution that "[i]t is generally believed that decades of abuses perpetrated by a badly malapportioned legislature figured heavily in the decision to give the people a shot at constitutional change that did not involve that body." Thomas Marks, Constitutional Change Initiated by the People: One State's Unhappy Experience, 68 TEMP. L. REV. 1241, 1246 (1995). Moreover, Professor Little has argued that it is the legislature, not the citizens' ballot initiative, that is the greater threat to the Florida Constitution as it "tend(s) to use its power to propose constitutional amendments as a means to move contentious, legislative proposals to a vote of the people in the guise of amending the constitution." Joseph Little, Does Direct Democracy Threaten Constitutional Governance in Florida?, 24 STETSON L. REV. 393, 398 (1995).
28. It is, of course, a perennial question whether advancing democracy is a valid goal within our constitutional regime. Because we have an essentially republican system, it has been argued, the initiative process is too democratic, perhaps even unconstitutionally so. As Professor Gordon writes, for example, "[r]estricting the initiative proposal in Florida even further than the current single subject and other requirements would help preserve the constitution, republicanism, and respect for pluralism and diversity." Daniel R. Gordon, Protecting Against the State Constitutional Junkyard: Proposals to Limit Popular Constitutional Revision in Florida, 20 NOVA L. REV. 413, 434 (1995). See also Catherine A. Rogers & David L. Faigman, And to the Republic for Which it Stands: Guaranteeing a Republican Form of Government, 23 HASTINGS CONST. L.Q. 1057, 1059 (1996) (arguing initiative process is per se violation of Republican Guaranty clause of Article IV, section 4 of United States Constitution); Hans A. Linde, When is Initiative Lawmaking Not "Republican Government"?, 17 HASTINGS CONST. L.Q. 159, 160-61 (1989) (arguing although Supreme Court declined to interpret meaning of constitution's "republican form of government," state courts may decide claims of unrepublican state acts). On the other hand, Tocqueville observed nearly two centuries ago that the United States is perhaps the best example of the western trend, extending back nearly a millennium, toward democratization. ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 36 (Richard D. Heffner ed., 1960). Indeed, five of the eleven amendments to the United States Constitution since 1913 have functioned to extend the franchise to previously disenfranchised groups, thus suggesting a broad movement of American constitutionalism toward an increased emphasis on democratic process. JOHN HART ELY, DEMOCRACY AND DISTRUST 99 (1981). With particular reference to the initiative process, Professor Lazos Vargas observes that "direct democracy is embedded in our civic democracy." Sylvia Lazos Vargas, Judicial Review of Initiatives and Referendums in Which Majorities Vote on Minorities' Democratic Citizenship, 60 OHIO ST. L.J. 399, 406 n.26 (1999). Indeed, the initiative process is in place in twenty-four states, Richard B. Collins & Dale Oesterle, Structuring the Ballot Initiative: Procedures that Do and Don't Work, 66 U. COLO. L. REV. 47, 54 (1995), and the first sentence of the Florida Declaration of Rights provides that "[a]ll political power is inherent in the people." FLA. CONST, art. I, § 1. As the court has recently ruled, accordingly, "[u]nder our constitutional form of government in Florida, the legislature is authorized to enact statutory laws and the courts can define the common law, but only the people - by direct vote - can delineate the organic law." Armstrong, 773 So. 2d at 22. (emphasis added). As Leonard thus observes, "after several decades of experience with the initiative, it is clear that direct legislation has not brought about the collapse of representative government." Ame R. Leonard, In Search of the Deliberative Initiative: A Proposal for a New Method of Constitutional Change, 69 TEMP. L. REV. 1203, 1221 (1996). As a matter of Florida legal history, Professor Marks observes of the inclusion of the initiative process in the 1968 Revision of the Florida Constitution that "[i]t is generally believed that decades of abuses perpetrated by a badly malapportioned legislature figured heavily in the decision to give the people a shot at constitutional change that did not involve that body." Thomas Marks, Constitutional Change Initiated by the People: One State's Unhappy Experience, 68 TEMP. L. REV. 1241, 1246 (1995). Moreover, Professor Little has argued that it is the legislature, not the citizens' ballot initiative, that is the greater threat to the Florida Constitution as it "tend(s) to use its power to propose constitutional amendments as a means to move contentious, legislative proposals to a vote of the people in the guise of amending the constitution." Joseph Little, Does Direct Democracy Threaten Constitutional Governance in Florida?, 24 STETSON L. REV. 393, 398 (1995).
29. It is, of course, a perennial question whether advancing democracy is a valid goal within our constitutional regime. Because we have an essentially republican system, it has been argued, the initiative process is too democratic, perhaps even unconstitutionally so. As Professor Gordon writes, for example, "[r]estricting the initiative proposal in Florida even further than the current single subject and other requirements would help preserve the constitution, republicanism, and respect for pluralism and diversity." Daniel R. Gordon, Protecting Against the State Constitutional Junkyard: Proposals to Limit Popular Constitutional Revision in Florida, 20 NOVA L. REV. 413, 434 (1995). See also Catherine A. Rogers & David L. Faigman, And to the Republic for Which it Stands: Guaranteeing a Republican Form of Government, 23 HASTINGS CONST. L.Q. 1057, 1059 (1996) (arguing initiative process is per se violation of Republican Guaranty clause of Article IV, section 4 of United States Constitution); Hans A. Linde, When is Initiative Lawmaking Not "Republican Government"?, 17 HASTINGS CONST. L.Q. 159, 160-61 (1989) (arguing although Supreme Court declined to interpret meaning of constitution's "republican form of government," state courts may decide claims of unrepublican state acts). On the other hand, Tocqueville observed nearly two centuries ago that the United States is perhaps the best example of the western trend, extending back nearly a millennium, toward democratization. ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 36 (Richard D. Heffner ed., 1960). Indeed, five of the eleven amendments to the United States Constitution since 1913 have functioned to extend the franchise to previously disenfranchised groups, thus suggesting a broad movement of American constitutionalism toward an increased emphasis on democratic process. JOHN HART ELY, DEMOCRACY AND DISTRUST 99 (1981). With particular reference to the initiative process, Professor Lazos Vargas observes that "direct democracy is embedded in our civic democracy." Sylvia Lazos Vargas, Judicial Review of Initiatives and Referendums in Which Majorities Vote on Minorities' Democratic Citizenship, 60 OHIO ST. L.J. 399, 406 n.26 (1999). Indeed, the initiative process is in place in twenty-four states, Richard B. Collins & Dale Oesterle, Structuring the Ballot Initiative: Procedures that Do and Don't Work, 66 U. COLO. L. REV. 47, 54 (1995), and the first sentence of the Florida Declaration of Rights provides that "[a]ll political power is inherent in the people." FLA. CONST, art. I, § 1. As the court has recently ruled, accordingly, "[u]nder our constitutional form of government in Florida, the legislature is authorized to enact statutory laws and the courts can define the common law, but only the people - by direct vote - can delineate the organic law." Armstrong, 773 So. 2d at 22. (emphasis added). As Leonard thus observes, "after several decades of experience with the initiative, it is clear that direct legislation has not brought about the collapse of representative government." Ame R. Leonard, In Search of the Deliberative Initiative: A Proposal for a New Method of Constitutional Change, 69 TEMP. L. REV. 1203, 1221 (1996). As a matter of Florida legal history, Professor Marks observes of the inclusion of the initiative process in the 1968 Revision of the Florida Constitution that "[i]t is generally believed that decades of abuses perpetrated by a badly malapportioned legislature figured heavily in the decision to give the people a shot at constitutional change that did not involve that body." Thomas Marks, Constitutional Change Initiated by the People: One State's Unhappy Experience, 68 TEMP. L. REV. 1241, 1246 (1995). Moreover, Professor Little has argued that it is the legislature, not the citizens' ballot initiative, that is the greater threat to the Florida Constitution as it "tend(s) to use its power to propose constitutional amendments as a means to move contentious, legislative proposals to a vote of the people in the guise of amending the constitution." Joseph Little, Does Direct Democracy Threaten Constitutional Governance in Florida?, 24 STETSON L. REV. 393, 398 (1995).
30. Armstrong, 773 So. 2d at 12.
31. W. at 21. (emphasis in original).
32. FLA. CONST., art. I, § 1.
33. FCRI Advisory Opinion, 778 So. 2d 888, 891 (Fla. 2000) (quoting In re Tax Limitation I, 644 So. 2d 486, 489 (Fla. 1994)). As the court has written elsewhere, "the wisdom of a proposed amendment is not a matter for our review." Askew v. Firestone, 421 So. 2d 151, 155 (Fla. 1982).
34. Weber v. Smathers,.338 So. 2d 819, 821 (Fla. 1976).
35. Evans v. Firestone, 457 So. 2d 1351, 1356-57 (Fla. 1984) (Overton, J., concurring).
36. As the Oklahoma Supreme Court has commented in this context, "[t]he people reserved to themselves the power to propose laws and amendments to the Constitution.... This power so reserved to the people should not be crippled, avoided, or denied by technical construction by the courts." In re Initiative Petition No. 259, 316 P.2d 139, 144 (Okla. 1957) (quoting Ruth v. Peshek, 5 P.2d 108, 111 (Okla. 1931)) (emphasis added).
37. See infra notes 28-30 for references noting court's criteria are highly manipulable, thus allowing great room for abuse.
38. P.K. Jameson & Marsha Hosack, Citizen Initiatives in Florida: An Analysis of Florida's Constitutional Initiative Process, Issues and Alternatives, 23 FLA. ST. U. L. REV. 417, 453-56 (1995) (citing former state senator John Ware, Professor Joseph Little, and Professor Thomas Marks). See generally FLA. S. COMM. ON GOV'T REFORM & OVERSIGHT, A REVIEW OF THE CITIZEN INITIATIVE METHOD OF PROPOSING AMENDMENTS TO THE FLORIDA CONSTITUTION 35-62 (1995) (discussing judicial review of citizen initiatives).
39. P.K. Jameson & Marsha Hosack, Citizen Initiatives in Florida: An Analysis of Florida's Constitutional Initiative Process, Issues and Alternatives, 23 FLA. ST. U. L. REV. 417, 453-56 (1995) (citing former state senator John Ware, Professor Joseph Little, and Professor Thomas Marks). See generally FLA. S. COMM. ON GOV'T REFORM & OVERSIGHT, A REVIEW OF THE CITIZEN INITIATIVE METHOD OF PROPOSING AMENDMENTS TO THE FLORIDA CONSTITUTION 35-62 (1995) (discussing judicial review of citizen initiatives).
40. Marks, supra note 19, at 1242.
41. Little, supra note 19, at 403-04.
42. Little, supra note 19, at 403-04.
43. In re Limited Political Terms in Certain Elective Offices, 592 So. 2d 225, 231 (Fla. 1991) (Kogan, J., concurring, in part and dissenting in part). To underscore the point, even Justice Kogan's "reasonable voter test" simply pushes the inquiry back a step to the question of what a rational voter would do. Id. Assuming that reasonableness equals rationality, Professor Lowenstein has observed, "for a reasonableness standard to have any conceptual coherence...there must be an implicit or explicit understanding of the criterion of reasonableness." Daniel Lowenstein, California Initiatives and the Single Subject Rule, 30 UCLA L. REV. 936, 969 (1983). While Lowenstein makes a fair point, his implicit assumption of the binary nature of reasonableness is in my view misleading, as reasonableness is better understood as a continuum, there being more and less reasonable arguments, as I shall attempt to show in the examples we shall consider.
44. See FCRI Advisory Opinion, 78 So. 2d 888, 889-90 (Fla. 2000) (describing initiative petitions).
45. The Florida Associated General Contractors also support the measure. Jim Saunders, Court Snuffs Connerly's Anti-affirmative Action Drive, FLA. TIMES-UNION, July 14, 2000, at B1.
46. See FCRI Advisory Opinion, 778 So. 2d at 889-90 (setting forth four petitions).
47. See supra note 2 for a discussion of California's Proposition 209.
48. See FCRI Advisory Opinion, 778 So. 2d at 890 (setting forth proposed amendment barring differential treatment in education, employment, and contracting).
49. See id. (differentiating proposed amendments per their subject matter).
50. Id.
51. See id. at 893 (recognizing omnibus petition contains fatal flaw of combining three distinct subjects which constitute separate and distinct functional operations of government).
52. See id. at 900 (holding four proposed amendments should be stricken from ballot for failure to comply with Article XI, § 3 of Florida Constitution and Florida Statute § 101.161).
53. Professor Bruce Rogow, quoted in Julie Kay, Initiative to Kill Program Fails, MIAMI DAILY BUS. REV., Feb. 9, 2001, at B10.
54. See infra notes 45-144 for a discussion of the court's reasoning.
55. Id.
56. To lay my own cards on the table, I do not claim that eliminating affirmative action in all forms and contexts is the only defensible policy in this area. As I have written elsewhere, public affirmative action in limited forms and contexts is either defensible or potentially defensible if certain gaps in affirmative action proponents' arguments can be bridged, although it is not clear that this is possible. See generally Martin D. Carcieri, The Wages of Taking Bakke Seriously: The Untenable Denial of the Primacy of the Individual, 67 TENN. L. REV. 949, 950-52 (2000) (commenting on primacy of individual rights under Equal Protection Clause). See also Martin D. Carcieri, A Progressive Reply to Professor Oppenhelmer and Proposition 209; 40 SANTA CLARA L. REV. 1105, 1130 (2000) (noting that "less coercive forms of affirmative action generally pose no constitutional problems"); Martin D. Carcieri, Operational Need, Political Reality, and Liberal Democracy: Two Suggested Amendments to Proposition 209-Based Reforms, 9 SETON HALL CONST. L.J. 459, 466-76 (1999) (proposing short-term race preferences for public employment and university admissions). My present concern is the Florida Supreme Court's blatant abuse of rules of form to take from the people a substantive decision which they have a fundamental right to make.
57. To lay my own cards on the table, I do not claim that eliminating affirmative action in all forms and contexts is the only defensible policy in this area. As I have written elsewhere, public affirmative action in limited forms and contexts is either defensible or potentially defensible if certain gaps in affirmative action proponents' arguments can be bridged, although it is not clear that this is possible. See generally Martin D. Carcieri, The Wages of Taking Bakke Seriously: The Untenable Denial of the Primacy of the Individual, 67 TENN. L. REV. 949, 950-52 (2000) (commenting on primacy of individual rights under Equal Protection Clause). See also Martin D. Carcieri, A Progressive Reply
58. To lay my own cards on the table, I do not claim that eliminating affirmative action in all forms and contexts is the only defensible policy in this area. As I have written elsewhere, public affirmative action in limited forms and contexts is either defensible or potentially defensible if certain gaps in affirmative action proponents' arguments can be bridged, although it is not clear that this is possible. See generally Martin D. Carcieri, The Wages of Taking Bakke Seriously: The Untenable Denial of the Primacy of the Individual, 67 TENN. L. REV. 949, 950-52 (2000) (commenting on primacy of individual rights under Equal Protection Clause). See also Martin D. Carcieri, A Progressive Reply to Professor Oppenhelmer and Proposition 209; 40 SANTA CLARA L. REV. 1105, 1130 (2000) (noting that "less coercive forms of affirmative action generally pose no constitutional problems"); Martin D. Carcieri, Operational Need, Political Reality, and Liberal Democracy: Two Suggested Amendments to Proposition 209-Based Reforms, 9 SETON HALL CONST. L.J. 459, 466-76 (1999) (proposing short-term race preferences for public employment and university admissions). My present concern is the Florida Supreme Court's blatant abuse of rules of form to take from the people a substantive decision which they have a fundamental right to make.
59. See FCRI Advisory Opinion, 778 So. 2d at 892 (discussing single subject requirement).
60. Id. at 893.
61. William Van Alstyne, Rites of Passage: Race, the Supreme Court, and the Constitution, 46 U. CHI. L. REV. 775, 809-10 (1979) (emphasis in original).
62. See infra notes 50-52 and accompanying text for an example of such precedent.
63. In re Prohibiting Public Funding of Political Candidates' Campaigns, 693 So. 2d 972, 974 (Fla. 1997) (examining initiative seeking to prohibit public funding of political campaigns of candidates for certain state offices).
64. Id. at 975.
65. See id. at 975-76 (noting importance of avoiding a narrow construction of Rules).
66. See FCRI Advisory Opinion, 778 So. 2d 888, 902 (Fla. 2000) (Shaw, J., concurring). This divergence within the court, I submit, is the first hint that it has failed to provide reasonable guidance in this case. Where one justice rules that the broad version of the FCRI complies with the single subject rule yet he and the majority hold that the narrow versions violate the rule, they are miles apart. This makes it virtually impossible to know how to re-draft the measure for compliance with the law.
67. This is a big "if." As we saw, only Justice Powell embraced diversity in Bakke, Gratz is a weak opinion, and many recent lower court rulings have rejected diversity as a compelling state interest. See, e.g., Wessmann v. Gittens, 160 F. 3d 790, 798 (1st Cir. 1998) (declaring racially and ethnically conscious admission policy used by Boston public school unconstitutional); Hopwood v. Texas, 78 F.3d 932, 945 (5th Cir. 1996) (explaining that using race to choose students results only in student body that looks different), cert denied, 518 U.S. 1033 (1996); Grutter v. Bollinger, 137 F. Supp. 2d 821, 849 (E.D. Mich. 2001) (concluding that achievement of racial diversity in university admissions is not compelling state interest because it is not remedy for past discrimination); Johnson v. Bd. of Regents, 106 F. Supp. 2d 1362, 1372 (S.D. Ga. 2000) (concluding "student body diversity" does not meet required standard of being sufficiently specific and verifiable).
68. As affirmative action proponents Akhil Amar and Neal Katyal have argued, "[c]ontracting set-asides mean that 'minority firms' win some projects and 'white firms do not; this can balkanize the races by encouraging their segregation. Education, in contrast, unites people from different walks of life...." Akhil Amar & Neal Katyal, Bakke's Fate, 43 UCLA L. REV. 1745, 1749 (1996). "[Further], the university experience is...quite different from...the largely nonexistent contact between the minority and non-minority contractors in Croson and Adarand." Id. at 1774-75.
69. Let us note, however, that the case on which the court centrally rests this part of its ruling, In re Restricts Laws Related to Discrimination, 632 So. 2d 1018 (Fla. 1994) [hereinafter Restricts Laws], is inapposite. In that case, the court invalidated a proposed amendment barring government from enacting or adopting "any law regarding discrimination against persons which creates, establishes or recognizes any right, privilege or protection for any person based upon any characteristic, trait, status, or condition other than race, color, religion, sex, national origin, age, handicap, ethnic background, marital status, or familial status." Id. at 1019. The court ruled that the amendment violated the single subject rule "because it enumerates ten classifications of people that would be entitled to protection from discrimination if the amendment were passed. The voter is essentially being asked to give one 'yes' or 'no' answer to a proposal that actually asks ten questions." Id. at 1020. While the court in FCRI Advisory Opinion ruled that the "omnibus petition contains the same fatal flaw," FCRI Advisory Opinion, 778 So. 2d at 893, this was clearly mistaken. A careful reading of the measure in Restricts Laws suggests that it did not ask voters to decide which of the ten categories should be a basis for allowing discrimination by government. Restricts Laws, 632 So. 2d at 1020. They were simply being asked whether they wanted to limit the categories that can be the basis for protection against discrimination to these ten. Id. Whether there were to be laws protecting any of the ten categories from discrimination was not what they were being asked - that was being reserved for the future. Id. While the court's ruling on the omnibus version was thus anticipated, Restricts Laws is irrelevant as precedent for that ruling.
70. FCRI Advisory Opinion, 778 So. 2d at 892-96.
71. See id. at 894 (examining what portions of constitution are affected by amendments).
72. See id. at 895 (explaining court invalidated proposed amendments for substantially altering or performing functions of multiple branches of government).
73. See supra note 10 and accompanying text for a discussion of the importance of this requirement.
74. See Fine v. Firestone, 448 So. 2d. 984, 989 (Fla. 1984) (explaining why initiative provision should identify articles or sections of constitution affected).
75. In re English-the Official Language of Florida, 520 So. 2d 11, 12-13 (Fla. 1988) (concluding although potential exists for initiative to have broader impact than anticipated, ballot summary need not detail all that proponents want to accomplish).
76. Id. at 13.
77. See FCRI Advisory Opinion, 778 So. 2d at 899 (explaining that although proponents of amendment must provide notice of its content, they need not explain every detail or ramification).
78. FLA. CONST, art. I, § 2. This is actually the Deprivation Clause, which is distinct from, yet complements, the Equal Protection Clause of Article I, section 2, which provides that "[a]ll natural persons, female and male alike, are equal before the law...." See Schreiner v. McKenzie Tank Lines, Inc., 432 So. 2d 567, 567-68 (Fla. 1983) (referring to Article I, section 2 of Florida Constitution as "Deprivation Clause").
79. FCRI Advisory Opinion, 778 So. 2d at 894.
80. See supra note 65 for a discussion of art. I, § 2.
81. FCRI Advisory Opinion, 778 So. 2d at 904 (Shaw, J., concurring).
82. Id. at 894 (emphasis added).
83. See, e.g., FLA. STAT. ANN. § 240.2997(10) (West Supp. 2001) (specifying steps required of FSU College of Medicine to ensure proportional representation of minorities among student body, faculty, and staff); Id. § 287.0931-.0947 (West Supp. 2001) (delineating minority business enterprise programs); Id. § 288.702-.714 (West Supp. 2001) (setting forth Florida Small Minority Business Assistance Act of 1985); Id. § 337.125-.139 (West Supp. 2001) (delineating criteria for socially and economically disadvantaged enterprises).
84. See FCRI Advisory Opinion, 778 So. 2d at 894 (pointing out FCRI conceded affirmative action laws and programs have been used in past). In making this observation, however, the court appears to confuse "is" with "ought." FCRI counsel had to concede that Florida government presently use preferences, this being the FCRI's raison d'etre, but that hardly means that it is right or constitutional. That is the very question the voters would be allowed to decide if FCRI were allowed on the ballot, yet the court seems simply to assume that what is the case ought to be the case, and further, seems to insinuate that that is what FCRI counsel conceded, which is absurd.
85. See id. (noting affirmative action laws and programs have been used in past).
86. Id. at 894 (emphasis in original).
87. See infra note 75 for further discussion of difference between constitutional rights and legislative protections.
88. This seems a basic distinction that a supreme court would not miss, but as Webster and Bell write, it is important to "note the difference between constitutional rights and legislatively created rights." The Honorable Daniel Webster & Donald L. Bell, First Principles of Constitutional Revision, 22 NOVA L. REV. 391, 432 n.217 (1997). As Justice Shaw wrote in concurrence, "the amendments would have a practical effect...for they would bar government from doing something that it can presently do. In point of fact, state and local governments in Florida have recognized historically founded inequities and have promulgated class-specific programs promoting citizens' rights...." FCRI Advisory Opinion, 778 So. 2d at 904 (Shaw, J., concurring) (emphasis added). Two observations are in order. First, when Justice Shaw mentioned "citizens' rights," he was clearly referring not to all citizens, but only to members of the groups entitled to preferences under current law. As Webster and Bell observe, however, "all rights of a constitutional nature are vested in individuals, not in groups. When we attempt to confer preferences upon groups as opposed to individuals, we move in direct violation of the principle of equal protection." Webster & Bell, at 432-33. The individualist locus of equal protection is deeply embedded in United States Supreme Court jurisprudence. See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995) (explaining Fourteenth Amendment protects persons, not groups); Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 281-82 n.8 (1986) (declaring Constitution does not confer rights in "bloc grants within discrete racial groups"); Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 289 (1978) (explaining Fourteenth Amendment establishes personal rights); Shelley v. Kraemer, 334 U.S. 1, 22 (1948) (explaining rights created by § 1 of Fourteenth Amendment are "guaranteed to the individual"). Indeed, Justice Shaw himself has clearly recognized the individual, not group, locus of rights under the Florida Constitution. See Traylor v. Florida, 596 So. 2d 957, 963-64 (Fla. 1992) (declaring rights in Florida Constitution operate in favor of individual). It thus appears that he has collapsed form and substance in this case in order to reach a political outcome. Second, the allocation of public benefits based on race, ethnicity, and gender is "something government can presently do," FCRI Advisory Opinion, 778 So. 2d at 904 (Shaw, J., concurring), only in the literal, empirical sense that it has long done so. It begs the question, however, to suggest that it is "something government can presently do" consistently with constitutional text providing that "all natural persons, female and male alike, are equal before the law" and that "[n]o person shall be deprived of any right because of race...." FLA. CONST, art. I, § 2. When preferences are used, those individuals against whom they are used are denied the fundamental civil right of equal consideration by government regardless of the immutable traits over which no one has any control and which thus say nothing about accomplishments, abilities, or character. With rare exception, there is no constitutional right to preferential treatment based on race, ethnicity, or gender; it is permissible only upon a showing of identified discrimination within the governmental unit proposing to use the preferences to remedy such discrimination. See, e.g., Wygant, 476 U.S. at 274-77 (outlining requirements that need to be met in order to justify racial classification); City of Richmond v. Croson, 488 U.S. 469, 488-89 (1989) (noting classifications based on race can be justified in certain situations). As a panel of the United States Court of Appeals for the Ninth Circuit unanimously held in rejecting the equal protection challenge to Proposition 209, "[t]he Fourteenth Amendment, lest we lose sight of the forest for the trees, does not require what it barely permits." Coalition for Econ. Equity v. Wilson, 110 F.3d 1431, 1446 (9th Cir. 1997). Even affirmative action opponents concede the point. As United States Department of Education official Raymond Pierce observed in the context of the One Florida controversy, "[t]he state has no lawful obligation to use affirmative action." Laura Diamond, One Florida Plan Taking Flak, FLA. TIMES-UNION, Feb. 26, 2000, at B1, B3. See also Tonyaa Weathersbee, Key Questions Need Answers on Affirmative Action Issue, FLA. TIMES-UNION, Mar. 6, 2000, at B5 (conceding State is not required even to use weaker forms of affirmative action that One Florida Initiative provides). Like the majority, however, Justice Shaw simply assumes that preferences are the status quo, an indisputable, inherent prerogative of government that voters are powerless to withdraw. FCRI Advisory Opinion, 778 So. 2d at 904 (Shaw, J., concurring).
89. This seems a basic distinction that a supreme court would not miss, but as Webster and Bell write, it is important to "note the difference between constitutional rights and legislatively created rights." The Honorable Daniel Webster & Donald L. Bell, First Principles of Constitutional Revision, 22 NOVA L. REV. 391, 432 n.217 (1997). As Justice Shaw wrote in concurrence, "the amendments would have a practical effect...for they would bar government from doing something that it can presently do. In point of fact, state and local governments in Florida have recognized historically founded inequities and have promulgated class-specific programs promoting citizens' rights...." FCRI Advisory Opinion, 778 So. 2d at 904 (Shaw, J., concurring) (emphasis added). Two observations are in order. First, when Justice Shaw mentioned "citizens' rights," he was clearly referring not to all citizens, but only to members of the groups entitled to preferences under current law. As Webster and Bell observe, however, "all rights of a constitutional nature are vested in individuals, not in groups. When we attempt to confer preferences upon groups as opposed to individuals, we move in direct violation of the principle of equal protection." Webster & Bell, at 432-33. The individualist locus of equal protection is deeply embedded in United States Supreme Court jurisprudence. See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995) (explaining Fourteenth Amendment protects persons, not groups); Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 281-82 n.8 (1986) (declaring Constitution does not confer rights in "bloc grants within discrete racial groups"); Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 289 (1978) (explaining Fourteenth Amendment establishes personal rights); Shelley v. Kraemer, 334 U.S. 1, 22 (1948) (explaining rights created by § 1 of Fourteenth Amendment are "guaranteed to the individual"). Indeed, Justice Shaw himself has clearly recognized the individual, not group, locus of rights under the Florida Constitution. See Traylor v. Florida, 596 So. 2d 957, 963-64 (Fla. 1992) (declaring rights in Florida Constitution operate in favor of individual). It thus appears that he has collapsed form and substance in this case in order to reach a political outcome. Second, the allocation of public benefits based on race, ethnicity, and gender is "something government can presently do," FCRI Advisory Opinion, 778 So. 2d at 904 (Shaw, J., concurring), only in the literal, empirical sense that it has long done so. It begs the question, however, to suggest that it is "something government can presently do" consistently with constitutional text providing that "all natural persons, female and male alike, are equal before the law" and that "[n]o person shall be deprived of any right because of race...." FLA. CONST, art. I, § 2. When preferences are used, those individuals against whom they are used are denied the fundamental civil right of equal consideration by government regardless of the immutable traits over which no one has any control and which thus say nothing about accomplishments, abilities, or character. With rare exception, there is no constitutional right to preferential treatment based on race, ethnicity, or gender; it is permissible only upon a showing of identified discrimination within the governmental unit proposing to use the preferences to remedy such discrimination. See, e.g., Wygant, 476 U.S. at 274-77 (outlining requirements that need to be met in order to justify racial classification); City of Richmond v. Croson, 488 U.S. 469, 488-89 (1989) (noting classifications based on race can be justified in certain situations). As a panel of the United States Court of Appeals for the Ninth Circuit unanimously held in rejecting the equal protection challenge to Proposition 209, "[t]he Fourteenth Amendment, lest we lose sight of the forest for the trees, does not require what it barely permits." Coalition for Econ. Equity v. Wilson, 110 F.3d 1431, 1446 (9th Cir. 1997). Even affirmative action opponents concede the point. As United States Department of Education official Raymond Pierce observed in the context of the One Florida controversy, "[t]he state has no lawful obligation to use affirmative action." Laura Diamond, One Florida Plan Taking Flak, FLA. TIMES-UNION, Feb. 26, 2000, at B1, B3. See also Tonyaa Weathersbee, Key Questions Need Answers on Affirmative Action Issue, FLA. TIMES-UNION, Mar. 6, 2000, at B5 (conceding State is not required even to use weaker forms of affirmative action that One Florida Initiative provides). Like the majority, however, Justice Shaw simply assumes that preferences are the status quo, an indisputable, inherent prerogative of government that voters are powerless to withdraw. FCRI Advisory Opinion, 778 So. 2d at 904 (Shaw, J., concurring).
90. This seems a basic distinction that a supreme court would not miss, but as Webster and Bell write, it is important to "note the difference between constitutional rights and legislatively created rights." The Honorable Daniel Webster & Donald L. Bell, First Principles of Constitutional Revision, 22 NOVA L. REV. 391, 432 n.217 (1997). As Justice Shaw wrote in concurrence, "the amendments would have a practical effect...for they would bar government from doing something that it can presently do. In point of fact, state and local governments in Florida have recognized historically founded inequities and have promulgated class-specific programs promoting citizens' rights...." FCRI Advisory Opinion, 778 So. 2d at 904 (Shaw, J., concurring) (emphasis added). Two observations are in order. First, when Justice Shaw mentioned "citizens' rights," he was clearly referring not to all citizens, but only to members of the groups entitled to preferences under current law. As Webster and Bell observe, however, "all rights of a constitutional nature are vested in individuals, not in groups. When we attempt to confer preferences upon groups as opposed to individuals, we move in direct violation of the principle of equal protection." Webster & Bell, at 432-33. The individualist locus of equal protection is deeply embedded in United States Supreme Court jurisprudence. See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995) (explaining Fourteenth Amendment protects persons, not groups); Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 281-82 n.8 (1986) (declaring Constitution does not confer rights in "bloc grants within discrete racial groups"); Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 289 (1978) (explaining Fourteenth Amendment establishes personal rights); Shelley v. Kraemer, 334 U.S. 1, 22 (1948) (explaining rights created by § 1 of Fourteenth Amendment are "guaranteed to the individual"). Indeed, Justice Shaw himself has clearly recognized the individual, not group, locus of rights under the Florida Constitution. See Traylor v. Florida, 596 So. 2d 957, 963-64 (Fla. 1992) (declaring rights in Florida Constitution operate in favor of individual). It thus appears that he has collapsed form and substance in this case in order to reach a political outcome. Second, the allocation of public benefits based on race, ethnicity, and gender is "something government can presently do," FCRI Advisory Opinion, 778 So. 2d at 904 (Shaw, J., concurring), only in the literal, empirical sense that it has long done so. It begs the question, however, to suggest that it is "something government can presently do" consistently with constitutional text providing that "all natural persons, female and male alike, are equal before the law" and that "[n]o person shall be deprived of any right because of race...." FLA. CONST, art. I, § 2. When preferences are used, those individuals against whom they are used are denied the fundamental civil right of equal consideration by government regardless of the immutable traits over which no one has any control and which thus say nothing about accomplishments, abilities, or character. With rare exception, there is no constitutional right to preferential treatment based on race, ethnicity, or gender; it is permissible only upon a showing of identified discrimination within the governmental unit proposing to use the preferences to remedy such discrimination. See, e.g., Wygant, 476 U.S. at 274-77 (outlining requirements that need to be met in order to justify racial classification); City of Richmond v. Croson, 488 U.S. 469, 488-89 (1989) (noting classifications based on race can be justified in certain situations). As a panel of the United States Court of Appeals for the Ninth Circuit unanimously held in rejecting the equal protection challenge to Proposition 209, "[t]he Fourteenth Amendment, lest we lose sight of the forest for the trees, does not require what it barely permits." Coalition for Econ. Equity v. Wilson, 110 F.3d 1431, 1446 (9th Cir. 1997). Even affirmative action opponents concede the point. As United States Department of Education official Raymond Pierce observed in the context of the One Florida controversy, "[t]he state has no lawful obligation to use affirmative action." Laura Diamond, One Florida Plan Taking Flak, FLA. TIMES-UNION, Feb. 26, 2000, at B1, B3. See also Tonyaa Weathersbee, Key Questions Need Answers on Affirmative Action Issue, FLA. TIMES-UNION, Mar. 6, 2000, at B5 (conceding State is not required even to use weaker forms of affirmative action that One Florida Initiative provides). Like the majority, however, Justice Shaw simply assumes that preferences are the status quo, an indisputable, inherent prerogative of government that voters are powerless to withdraw. FCRI Advisory Opinion, 778 So. 2d at 904 (Shaw, J., concurring).
91. The court might reply that not all discrimination is invidious, but the U.S. Supreme Court has long rejected this distinction in the Equal Protection sphere, holding for good reasons that there is no such thing as benign race or gender discrimination. See Bakke, 438 U.S. at 294-95 n.34 (explaining all state-imposed classifications based on race are likely to be viewed with resentment by some).
92. FCRI Advisory Opinion, 778 So. 2d at 894.
93. To illustrate the contrast here, consider In re Tax Limitation I, in which the legislative powers to be substantially altered by the proposed amendment truly were powers (either of taxation or of issuing revenue bonds) expressly granted in the Florida Constitution. See In re Tax Limitation I, 644 So. 2d 486, 493-94 (Fla. 1994) (explaining proposed provision substantially impacts other provisions in Florida Constitution); Fine v. Firestone, 448 So. 2d 984, 986-88 (Fla. 1984) (holding proposed amendment violated single subject requirement for initiatives). See generally FLA CONST, art. VII (expressly granting state power to raise revenue). Here, by contrast, the legislative power to use race preferences in the allocation of public benefits is not only not provided in the Florida Constitution, but it contradicts the non-discrimination standard facially compelled by Article I, section 2.
94. See FCRI Advisory Opinion, 778 So. 2d at 894 (admitting "affirmative action" laws and programs have been used as remedies for violations or deprivations of rights).
95. Id.
96. Id. at 894-95.
97. Id. The court's confusion is evident elsewhere in the quoted passage, in its use of the word "remedy." The court wrote that "affirmative action laws and programs have been used as remedies for violations of deprivations of rights." Id. at 894. This usage, however, muddies the crucial distinction between 1) a court order to redress proven, identified discrimination within a particular governmental unit, which is constitutional, and 2) a sweeping legislative program of preferences to all and only those of particular races or ethnicities regardless of proof of discrimination a) against them as individuals, b) by the governmental agency seeking to use the preferences, or c) by the nonminority individuals being passed over as a result, which is unconstitutional. To be sure, "remedy" is sometimes used in the latter broad sense. According to Black's Law Dictionary, a remedy is "[t]he means by which a right is enforced or the violation of a right is prevented, redressed, or compensated." BLACK'S LAW DICTIONARY 1163 (5th ed. 1979). As we have seen, however, the United States Supreme Court has for over twenty years narrowed the scope of the remedial rationale which would justify the use of race-based classifications by government. See, e.g., Bakke, 438 U.S. at 294-95 n.34 (rejecting existence of benign race or gender discrimination). In the present context, thus, the court equivocated the term, and its usage is misleading and incorrect as a matter of law. See FCRI Advisory Opinion, 778 So. 2d at 894 (discussing remedial nature of some affirmative action programs).
98. FCRI Advisory Opinion, 778 So. 2d at 894.
99. Id. at 889. The relevant portion of the Florida Constitution states that "[t]he courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial, or delay." FLA. CONST, art. I, § 21.
100. FCRI Advisory Opinion, 778 So. 2d at 889 (quoting Proposed Amendment to FL. CONST, art. I, § 26).
101. Id. at 894-95.
102. Id.
103. See, e.g., City of Richmond v. J.A. Croson Co., 488 U.S. 469, 488-89 (1989) (noting specific findings of discrimination are required to justify race-conscious relief); Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 274-77 (1986) (requiring particularized proof of discrimination to justify racially classified remedy); Hazelwood Sch. Dist. v. U.S., 433 U.S. 299, 307-08 (1977) (requiring statistical proof that school board had practice of employment discrimination).
104. FCRI Advisory Opinion, 778 So. 2d at 895.
105. See supra notes 80-82 and accompanying text for a discussion of FCRI's impact on Article I, section 2.
106. See supra note 75 and accompanying text for a discussion of the court's characterization of FCRI's impact on judicial redress.
107. See supra note 88 for a discussion of United States Supreme Court decisions that permit preferences to remedy identified discrimination.
108. FCRI Advisory Opinion, 778 So. 2d at 895.
109. See supra notes 12-15 and accompanying text for a discussion of invalidation based on a proposal's effect on multiple branches of government.
110. Evans v. Firestone, 457 So. 2d 1351, 1360 (Fla. 1984) (Shaw, J., concurring).
111. In re Fish and Wildlife Conservation Commission, 705 So. 2d 1351, 1353-54 (Fla. 1998) (emphasis added). See also in re Save Our Everglades, 636 So. 2d 1336, 1340 (Fla. 1994) (noting single proposal that substantially alters or performs functions of multiple branches violates single subject rule); In re Limited Political Terms in Certain Elective Offices, 592 So. 2d 225, 227 (Fla. 1991) (finding proposed amendment meets single subject requirement because it has a single purpose). As the court wrote in a recent opinion, "this proposed amendment, even though affecting the constitutional authority of the Secretary of State and affecting more than one provision of the constitution...does not substantially alter the functions of multiple branches of government." In' re Term Limits Pledge, 718 So. 2d 798, 802 (Fla. 1998).
112. The court noted that it has also invalidated initiatives due to their effects on both legislative and executive functions. See In re Save Our Everglades, 636 So. 2d at 1340 (finding initiative invalid because performed both legislative and executive functions).
113. FCRI Advisory Opinion, 778 So. 2d at 895.
114. See supra note 88 for a summary of cases where the United States Supreme Court permitted preferences only where identified discrimination existed.
115. Marbury v. Madison, 5 U.S. 137, 177 (1803).
116. FCRI Advisory Opinion, 778 So. 2d at 895.
117. See supra note 88 and accompanying text for a discussion of the court's Article I, section 2 analysis.
118. See supra note 104 and accompanying text for commentary on the permissibility of altering legislative discretion.
119. FCRI Advisory Opinion, 778 So. 2d at 895-96.
120. Id. at 896.
121. 644 So. 2d 486 (Fla. 1994).
122. In re Tax Limitation I, 644 So. 2d at 495.
123. As Justice Kogan illustrated in his dissent from a ruling that a proposal to limit the terms of elected representatives in both the statehouse and Congress did not violate the single subject rule: [t]hose voters who might desire...to limit the terms of state legislators but not members of Congress have no meaningful way to make this choice even though there are many valid reasons for taking such a position. For example, voters might decide that the advantages outweigh the disadvantages on the question of term limitations for state legislators. This is because the delegations from all portions of the state will be treated equally in the statehouse. No geographical region would suffer any disadvantage with respect to any other region. The rules of the political game in Tallahassee would be the same for everyone. However, a substantial number of reasonable voters might decide that a similar limitation on the congressional delegation should be rejected because it would weaken Florida's effectiveness in Congress. This could occur, for example, if other states refuse to follow Florida's lead in limiting the terms of their congressional delegations. Because of the seniority requirements needed to obtain key committee appointments and chairmanships in Congress, Florida thus could be placed at a gross disadvantage with respect to other states. In re Limited Political Terms in Certain Elective Offices, 592 So. 2d at 232.
124. See supra notes 53-54 and accompanying text for a discussion of contexts where government may rationally use race or gender preferences.
125. See supra notes 53-54 and accompanying text for a discussion of how appropriateness of preferences may vary.
126. FCRI Advisory Opinion, 778 So. 2d 888, 896 (Fla. 2000).
127. FLA. CONST., art. VIII, § 2(b) (emphasis added).
128. Id.
129. Id.
130. FCRI Advisory Opinion, 778 So. 2d at 896.
131. See supra note 78 and accompanying text for a discussion on why an assumption that race and gender preferences are an established prerogative of government, which citizens are powerless to withdraw, is fundamentally flawed.
132. The claim regarding local police assignments may have merit. As some federal courts have recognized, law enforcement and corrections employment practices provide one narrow, relatively defensible exception for race/ethnic preferences within public employment. See, e.g., Wittmer v. Peters, 87 F.3d 916, 920 (7th Cir. 1996) (finding race preference for lieutenant positions in boot camp for young criminals did not violate equal protection); Barhold v. Rodriguez, 863 F.2d 233, 237 (2d Cir. 1988) (finding compelling state interest may exist for basing parole officer assignment policies on race and gender); Detroit Police Officers' Ass'n v. Young, 608 F.2d 671, 690 (6th Cir. 1979) (finding police department's affirmative action program did not violate Title VII). I have also made this argument. Carcieri, Operational Need, Political Reality, and Liberal Democracy, supra note 45, at 466-76., For example, somewhat similar to the bona fide occupational qualifications for which the FCRI creates an exception, undercover police work in some urban areas is effectively impossible for members of certain races. Under the "operational need" doctrine, thus, local government may justifiably retain the flexibility to respond to that concrete reality, and FCRI sponsors might have allowed for this. The Supreme Court has not ruled on this exception, however, so there is no basis to say that such an exception was constitutionally required. Rather, as a strategic matter, inclusion of a narrow exception for law enforcement and corrections practices under the operational need rationale should respond to the court's only valid point in its analysis of the single subject rule under the "multiple levels of government" test. Again, however, since the Florida court's first two arguments with respect to multiple levels of government are irrational, the justification for clarification by that court or review by the Supreme Court remains urgent.
133. FLA. STAT. ANN. § 101.161 (West Supp. 2001).
134. Id.
135. Carroll v. Firestone, 497 So. 2d 1204, 1206 (Fla. 1986) (emphasis added). See also In re Prohibiting Public Funding of Political Candidates' Campaigns, 693 So. 2d 972, 975 (Fla. 1997) (noting title and summary not required to explain every detail or ramification of amendment); In re Tax Limitation I, 644 So. 2d 486, 498 (Fla. 1994) (Shaw, J., dissenting in part and concurring in part) (noting summary need only explain amendment's chief purpose).
136. See infra notes 122-42 and accompanying text for a discussion of the three grounds.
137. As for the first, the court wrote: the ballot titles and summaries refer to "people"; however, the text of the proposed amendments refer to "persons." [The various opponents of the FCRI] contend that use of the term "people" fails to give voters notice that corporations may also be prohibited from receiving preferential treatment.... [T]he amendments' proscriptions could extend to corporations based on the race of their ownership or racially oriented purpose. FCRI Advisory Opinion, 778 So. 2d 888, 896-97 (Fla. 2000). On this basis, the court ruled that the ballot title and summary are fatally ambiguous. One could challenge this, of course, suggesting that since most voters are not lawyers they are unaware of the legal fiction by which corporations are considered "persons." Accordingly, substituting "persons" for "people" in the FCRI ballot titles and summaries would make no difference since it would alert few citizens to the problem. Still, FCRI was a proposed law, and the terms are not legally synonymous, so changing "people" to "persons" in the titles and summaries would seem at first glance to solve the problem. As the court states the same difficulty elsewhere, however the petitions do not account for the legal significance of using the term "person," thereby failing to inform voters of the potential breadth of the proposed amendments.... While "people" and "person"...appear synonymous, their legal differences are significant and not revealed to the voter. FCRI Advisory Opinion, 778 So. 2d at 897 (emphasis added). The phrase "failing to inform voters" suggests that more is required for compliance than simply changing a word. It suggests the duty to educate the public. To be safe, then, FCRI sponsors would probably have to indicate explicitly that "persons" includes corporations bidding on public contracts, which would thus be barred from preferences based on the race or ethnicity of their owners. This should satisfy the court and not necessarily jeopardize the FCRI's eventual chances of enactment. The FCRI has nothing to hide: banning government from granting public contracts based on the race or gender of a corporation's officers is one of the key motivations behind the FCRI, and polls indicate most Floridians support such a ban. See, e.g., George Coryell, Polls Show Support for One Florida Plan, TAMPA TRIBUNE, Mar. 10, 2000, at Florida/Metro B1 (reporting statewide poll shows majority of Florida voters support plan to end prefernces based on race, gender, and ethnicity); Steven Girardi, One Florida Backed in Survey, TAMPA TRIBUNE, Mar. 19, 2000, at Pascol (reporting eighty percent of Pasco County survey respondents support proposal to end racial and gender preferences); Mark Hollis, Poll Says Majority of Floridians Support Ending Affirmative Action, FLA. SUN-SENTINEL, Apr. 15, 2000, at Al (discussing Floridians' position toward affirmative action). As for the second alleged ballot title and summary problem, the court agreed "that the omnibus summary's reference to 'bona fide qualifications based on sex' does not accurately explain what the proposed amendment provides." FCRI Advisory Opinion, 778 So. 2d at 898. The omnibus petition had spoken to this by indicating that the exception is to protect sexual privacy or provide separate athletic teams. Moreover, FCRI counsel raised the obvious objection that "the statutory seventy-five word limit neither permits nor requires the inclusion of explanation of such detail...." Id at 899. Further, as mentioned, the court has even conceded that "the title and summary need not explain every detail or ramification of the proposed amendment." In re Prohibiting Public Funding of Political Candidates' Campaigns, 693 So.2d at 975. Yet it now fails to provide an adequate response to FCRI counsel's objection, and instead simply quotes one of its precedents for the observation that "the word limit does not give drafters of proposed amendments leave to ignore the importance of the ballot summary and to provide an abbreviated, ambiguous statement...." FCRI Advisory Opinion, 778 So. 2d at 899. This is no more useful than "we know it when we see it," and so the court's response on this point might be the strongest basis for a due process challenge to its opinion. The court provides no notice here, not a clue, of how to cure the existing infirmity. It is not even clear it is possible. The petition summary cannot exceed seventy-five words, and the bona fide sex qualifications clause of the petition, which would apparently have to be repeated verbatim in order to overcome this objection, is fifty words long. Requiring the impossible for compliance with the law is the essence of a violation of due process.
138. As for the first, the court wrote: the ballot titles and summaries refer to "people"; however, the text of the proposed amendments refer to "persons." [The various opponents of the FCRI] contend that use of the term "people" fails to give voters notice that corporations may also be prohibited from receiving preferential treatment.... [T]he amendments' proscriptions could extend to corporations based on the race of their ownership or racially oriented purpose. FCRI Advisory Opinion, 778 So. 2d 888, 896-97 (Fla. 2000). On this basis, the court ruled that the ballot title and summary are fatally ambiguous. One could challenge this, of course, suggesting that since most voters are not lawyers they are unaware of the legal fiction by which corporations are considered "persons." Accordingly, substituting "persons" for "people" in the FCRI ballot titles and summaries would make no difference since it would alert few citizens to the problem. Still, FCRI was a proposed law, and the terms are not legally synonymous, so changing "people" to "persons" in the titles and summaries would seem at first glance to solve the problem. As the court states the same difficulty elsewhere, however the petitions do not account for the legal significance of using the term "person," thereby failing to inform voters of the potential breadth of the proposed amendments.... While "people" and "person"...appear synonymous, their legal differences are significant and not revealed to the voter. FCRI Advisory Opinion, 778 So. 2d at 897 (emphasis added). The phrase "failing to inform voters" suggests that more is required for compliance than simply changing a word. It suggests the duty to educate the public. To be safe, then, FCRI sponsors would probably have to indicate explicitly that "persons" includes corporations bidding on public contracts, which would thus be barred from preferences based on the race or ethnicity of their owners. This should satisfy the court and not necessarily jeopardize the FCRI's eventual chances of enactment. The FCRI has nothing to hide: banning government from granting public contracts based on the race or gender of a corporation's officers is one of the key motivations behind the FCRI, and polls indicate most Floridians support such a ban. See, e.g., George Coryell, Polls Show Support for One Florida Plan, TAMPA TRIBUNE, Mar. 10, 2000, at Florida/Metro B1 (reporting statewide poll shows majority of Florida voters support plan to end prefernces based on race, gender, and ethnicity); Steven Girardi, One Florida Backed in Survey, TAMPA TRIBUNE, Mar. 19, 2000, at Pascol (reporting eighty percent of Pasco County survey respondents support proposal to end racial and gender preferences); Mark Hollis, Poll Says Majority of Floridians Support Ending Affirmative Action, FLA. SUN-SENTINEL, Apr. 15, 2000, at Al (discussing Floridians' position toward affirmative action). As for the second alleged ballot title and summary problem, the court agreed "that the omnibus summary's reference to 'bona fide qualifications based on sex' does not accurately explain what the proposed amendment provides." FCRI Advisory Opinion, 778 So. 2d at 898. The omnibus petition had spoken to this by indicating that the exception is to protect sexual privacy or provide separate athletic teams. Moreover, FCRI counsel raised the obvious objection that "the statutory seventy-five word limit neither permits nor requires the inclusion of explanation of such detail...." Id at 899. Further, as mentioned, the court has even conceded that "the title and summary need not explain every detail or ramification of the proposed amendment." In re Prohibiting Public Funding of Political Candidates' Campaigns, 693 So.2d at 975. Yet it now fails to provide an adequate response to FCRI counsel's objection, and instead simply quotes one of its precedents for the observation that "the word limit does not give drafters of proposed amendments leave to ignore the importance of the ballot summary and to provide an abbreviated, ambiguous statement...." FCRI Advisory Opinion, 778 So. 2d at 899. This is no more useful than "we know it when we see it," and so the court's response on this point might be the strongest basis for a due process challenge to its opinion. The court provides no notice here, not a clue, of how to cure the existing infirmity. It is not even clear it is possible. The petition summary cannot exceed seventy-five words, and the bona fide sex qualifications clause of the petition, which would apparently have to be repeated verbatim in order to overcome this objection, is fifty words long. Requiring the impossible for compliance with the law is the essence of a violation of due process.
139. As for the first, the court wrote: the ballot titles and summaries refer to "people"; however, the text of the proposed amendments refer to "persons." [The various opponents of the FCRI] contend that use of the term "people" fails to give voters notice that corporations may also be prohibited from receiving preferential treatment.... [T]he amendments' proscriptions could extend to corporations based on the race of their ownership or racially oriented purpose. FCRI Advisory Opinion, 778 So. 2d 888, 896-97 (Fla. 2000). On this basis, the court ruled that the ballot title and summary are fatally ambiguous. One could challenge this, of course, suggesting that since most voters are not lawyers they are unaware of the legal fiction by which corporations are considered "persons." Accordingly, substituting "persons" for "people" in the FCRI ballot titles and summaries would make no difference since it would alert few citizens to the problem. Still, FCRI was a proposed law, and the terms are not legally synonymous, so changing "people" to "persons" in the titles and summaries would seem at first glance to solve the problem. As the court states the same difficulty elsewhere, however the petitions do not account for the legal significance of using the term "person," thereby failing to inform voters of the potential breadth of the proposed amendments.... While "people" and "person"...appear synonymous, their legal differences are significant and not revealed to the voter. FCRI Advisory Opinion, 778 So. 2d at 897 (emphasis added). The phrase "failing to inform voters" suggests that more is required for compliance than simply changing a word. It suggests the duty to educate the public. To be safe, then, FCRI sponsors would probably have to indicate explicitly that "persons" includes corporations bidding on public contracts, which would thus be barred from preferences based on the race or ethnicity of their owners. This should satisfy the court and not necessarily jeopardize the FCRI's eventual chances of enactment. The FCRI has nothing to hide: banning government from granting public contracts based on the race or gender of a corporation's officers is one of the key motivations behind the FCRI, and polls indicate most Floridians support such a ban. See, e.g., George Coryell, Polls Show Support for One Florida Plan, TAMPA TRIBUNE, Mar. 10, 2000, at Florida/Metro B1 (reporting statewide poll shows majority of Florida voters support plan to end prefernces based on race, gender, and ethnicity); Steven Girardi, One Florida Backed in Survey, TAMPA TRIBUNE, Mar. 19, 2000, at Pascol (reporting eighty percent of Pasco County survey respondents support proposal to end racial and gender preferences); Mark Hollis, Poll Says Majority of Floridians Support Ending Affirmative Action, FLA. SUN-SENTINEL, Apr. 15, 2000, at Al (discussing Floridians' position toward affirmative action). As for the second alleged ballot title and summary problem, the court agreed "that the omnibus summary's reference to 'bona fide qualifications based on sex' does not accurately explain what the proposed amendment provides." FCRI Advisory Opinion, 778 So. 2d at 898. The omnibus petition had spoken to this by indicating that the exception is to protect sexual privacy or provide separate athletic teams. Moreover, FCRI counsel raised the obvious objection that "the statutory seventy-five word limit neither permits nor requires the inclusion of explanation of such detail...." Id at 899. Further, as mentioned, the court has even conceded that "the title and summary need not explain every detail or ramification of the proposed amendment." In re Prohibiting Public Funding of Political Candidates' Campaigns, 693 So.2d at 975. Yet it now fails to provide an adequate response to FCRI counsel's objection, and instead simply quotes one of its precedents for the observation that "the word limit does not give drafters of proposed amendments leave to ignore the importance of the ballot summary and to provide an abbreviated, ambiguous statement...." FCRI Advisory Opinion, 778 So. 2d at 899. This is no more useful than "we know it when we see it," and so the court's response on this point might be the strongest basis for a due process challenge to its opinion. The court provides no notice here, not a clue, of how to cure the existing infirmity. It is not even clear it is possible. The petition summary cannot exceed seventy-five words, and the bona fide sex qualifications clause of the petition, which would apparently have to be repeated verbatim in order to overcome this objection, is fifty words long. Requiring the impossible for compliance with the law is the essence of a violation of due process.
140. FCRI Advisory Opinion, 778 So. 2d at 898. This statement is misleading because the court has never held that the statutory provisions to be affected by a citizens' initiative must be identified. The reason for this is clear: one of the most basic functions of the initiative process is to allow citizens through the constitution to reverse legislative action with which they disagree. This takes on even more force where, as we have seen in this case, the legislature has long violated the plain terms of the constitution.
141. Id.
142. Id.
143. Id.
144. See supra note 70 and accompanying text for a discussion of Florida employing preferences based on race, ethnicity, and gender.
145. See supra notes 33-41 and accompanying text for a discussion of why race and gender-based differential treatment triggered the need and support for the FCRI.
146. See supra notes 33-41 and accompanying text for a discussion of why race and gender-based differential treatment triggered the need and support for the FCRI.
147. In re Limited Political Terms in Certain Elective Offices, 592 So. 2d 225, 228 (Fla. 1991).
148. Once again, further, one of the precedents on which the court relies undermines its conclusion on the FCRI. In Tax Limitation 1, the ballot summary was invalidated as misleading because it implies that there is presently no cap or limitation on taxes in the constitution at the present time when, in fact, there is such a limitation...in Article VII, section 9 ("Ad valorem taxes...shall not be levied in excess of the following millages....") and the inheritance and income tax in Article VII, section 5(b) ("No tax upon the estates or inheritances or upon the income of natural persons...shall be levied by the state in excess of the aggregate of amounts which may be allowed to be credited upon or deducted from any similar tax levied by the United States or any state.... No tax upon the income of residents and citizens other than natural persons shall be levied by the state, or under its authority, in excess of 5% of net income...."). In re Tax Limitation I, 644 So. 2d 486, 494 (Fla. 1994). As this passage makes clear, when a title/summary fails for implying X, X must clearly be contrary to what the constitution actually provides, and what government is actually doing. While sponsors of the tax amendment made no argument that the existing provisions were being ignored, we have seen in the present case that Article I, section 2 is routinely ignored. Since the cases are clearly distinguishable, Tax Limitation I provides no authority for this part of the court's ruling. There is, however, another possibility. It may be that the court is ruling in effect that with One Florida in place, it cannot be said that the state discriminates. Yet there are at least three problems with this claim as a basis for invalidating the FCRI. First, since One Florida is an executive order, it can be withdrawn with the stroke of a pen (which, given the criticism that Governor Bush has taken for the measure, might have occurred by now if the ACRI had not pressed forward with the FCRI even after One Florida was announced). It is thus a less stable form of law than legislation, not to mention a constitutional amendment, and so is no substitute for the FCRI. Second, unlike the FCRI, One Florida does not ban preferences in public employment, and so fails to provide the full sweep of protection potentially afforded by the FCRI. Even if One Florida were as secure a legal protection as the FCRI would be, it still leaves government a broad field within which to discriminate. Third, once again, these are questions of substance, not form, and so are for the voters to decide.
149. FCRI Advisory opinion, 778 So. 2d 888, 898 (Fla. 2000) (emphasis added). It is noteworthy, in passing, that whereas the court had referred to the "misleading negative implication that no such constitutional provision addressing differential treatment currently exists," it refers simply to the "negative implication that the government is presently practicing discrimination." Id. (emphasis added). Knowing that such discrimination is alive and well, even the court could not bring itself to say that the implication that it is doing so is misleading.
150. FCRI Advisory Opinion, 778 So. 2d at 898 (implying that ballot titles referring to governmental discrimination are defective even if government action is discriminatory). 134. See supra note 126 for a discussion regarding the court's insistence that the truth be told about the potential sweep of the word "persons."
151. 421 So. 2d 151 (Fla. 1982).
152. FLA. CONST, art. II, § 8. See Askew v. Firestone, 421 So. 2d 151, 152 (Fla. 1982) (discussing FLA. CONST, art. II, § §).
153. FLA. CONST, art. II, § 8(e).
154. Askew, 421 So. 2d at 153.
155. Id. at 155.
156. Id. at 156.
157. See supra notes 127-29 and accompanying text for a discussion of the "address discrimination" requirement.
158. See supra notes 135-41 and accompanying text for a discussion of the Askew rule.
159. See supra notes 65-83 for a discussion of Article I, section 2.
160. See supra notes 65-83 for a discussion of Article I, section 2.
161. See supra notes 115-18 for a discussion of the "home rule."
162. See supra notes 76-82 and accompanying text for a discussion of relevant material in the FCRI Advisory Opinion.
163. See supra notes 65-66 and accompanying text for a discussion of relevant material in the FCRI Advisory Opinion.
164. See supra notes 97 and 122-24 and accompanying text for a discussion of relevant material in the FCRI Advisory Opinion.
165. See supra notes 108-16 and accompanying text for a discussion of the multiple levels test.
166. See Michigan v. Long, 463 U.S. 1032, 1044 (1983) (finding Supreme Court had jurisdiction "in the absence of a plain statement that the decision below rested on adequate and independent state ground"). More recently, Justice Ginsburg referred to "the ordinary principle that...Federal courts defer to state high courts' interpretations of their State's own law. This principle reflects the core of federalism, on which all agree." Bush v. Gore, 531 U.S. 98, 142 (2000) (Ginsburg, J., dissenting).
167. See, e.g., Hill v. Colorado, 530 U.S. 703, 707 (2000) (involving Colorado statute regulating speech-related conduct near entrance to health care facility); Chicago v. Morales, 527 U.S. 41, 45-46 (1999) (involving Chicago ordinance prohibiting gang members from loitering in any public place); Kolender v. Lawson, 461 U.S. 352, 353 (1983) (involving California criminal statute requiring loiterers or wanderers to provide "credible and reliable" identification when requested by police officer in Terry stop).
168. See supra note 32 and accompanying text for a discussion of the state action.
169. See supra note 150 and accompanying text for a discussion of the adequate and independent state grounds doctrine.
170. U.S. CONST, art. VI, cl. 2.
171. U.S. CONST, amend. XIV, § 1.
172. Michigan v. Long, 463 U.S. 1032, 1041 (1983).
173. See supra notes 152-55 and accompanying text for a discussion of how federal questions can arise simply from a state supreme court's interpretation
174. See Bush v. Gore, 531 U.S. 98, 109 (2000) (finding procedural safeguards for purpose of equal protection); Bush v. Palm Beach County Canvassing Bd., 531 U.S. 70, 73 (2000) (examining constitutionality of Florida Supreme Court's decision to change state's elector appointment procedures after election and whether decision changed Florida elector selection unconstitutionally); Gore v. Harris, 772 So. 2d 1243, 1248 (Fla. 2000) (examining Florida legislation governing presidential elections); Palm Beach County Canvassing Bd. v. Harris, 772 So. 2d 1220, 1228 (Fla. 2000) (interpreting Florida voting legislation).
175. U.S. CONST, art. II, § 2.
176. See supra note 158 and accompanying text for discussion of cases examining issue where Article II, section 2 conflicted with the Fourteenth Amendment's impulse toward national uniformity.
177. 531 U.S. 98 (2000).
178. Bush, 531 U.S.at 110.
179. Id. at 114 (Rehnquist, C.J., concurring). Moreover, even liberal authorities conceded the point. As Justice Stevens wrote, "[w]hen questions arise about the meaning of state laws...it is our settled practice to accept the opinions of the highest courts of the States as providing the final answers. On rare occasions, however, either federal statutes or the Federal Constitution may require federal judicial intervention...." Id. at 123 (Stevens, J., dissenting). As Justice Ginsburg added, "[u]navoidably, this Court must sometimes examine State law in order to protect federal rights." Id. at 137 (Ginsburg, J., dissenting). She later refers to "the kind of recalcitrance by a state high court that warrants extraordinary action by this Court." Id. at 141.
180. See supra notes 156-58 and accompanying text for a demonstration of the Court correcting state court mistakes.
181. 531 U.S. 98 (2000).
182. JOHN COOPER & THOMAS MARKS, FLORIDA CONSTITUTIONAL LAW 644 (3d ed. 2000).
183. See, e.g., Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985) (stating claim depended on having property right and deprivation under state required due process); Mathews v. Eldridge, 424 U.S. 319, 332 (1976) (discussing requirements for procedural due process); Goldberg v. Kelly, 397 U.S. 254, 261 (1970) (requiring adequate hearing before termination of welfare benefits).
184. See, e.g., Mathews, 424 U.S. at 332 (setting forth standard for evaluating procedural due process).
185. See, e.g., Hill v. Colorado, 530 U.S. 703, 732 (2000) (rejecting argument that statute restricting protests and leafleting near health care facilities was constitutionally vague); Chicago v. Morales, 527 U.S. 41, 64 (1999) (holding loitering ordinance was impermissibly vague because it could reach broad range of innocent conduct); Kolender v. Lawson, 461 U.S. 352, 353, 361 (1982) (holding statute requiring loiterers to provide "credible and reliable" identification and to account for their presence when requested was unconstitutionally vague because it encouraged arbitrary enforcement by failing to describe with particularity what suspect must do to satisfy statute).
186. See, e.g., Loudermill, 470 U.S. at 532 (stating interests protected by due process created by public employment); Mathews, 124 U.S. at 340 (stating interest protected by due process created by disability payments); Goldberg, 397 U.S. at 264 (stating interest protected by due process created by welfare payments). See generally Charles A. Reich, The New Property, 73 YALE L.J. 733 (1964) (discussing rise of government "largess" as a modern substitute for property and need for law to recognize it as such with appropriate rights and safeguards).
187. See supra notes 167-68 and accompanying text for a discussion of one reason why the Fourteenth Amendment protects the liberty interest burdened by the FCRI ruling.
188. FLA. CONST, art. XI, § 5. No party, of course, is entitled to place whatever it wants in whatever form on the ballot. The court, we have seen, is authorized and indeed obligated to determine whether a measure conforms to the indispensable rules governing the form of citizens' initiatives.
189. Lowenstein, supra note 32, at 965. The United States Constitution, of course, does not require that the right of initiative be granted, only that if such a substantive right is given, then the Fourteenth Amendment determines what process is due. See Loudermill, 470 U.S. at 541 (explaining legislature may elect not to confer property interest, but may not authorize deprivation of such interest).
190. See, e.g., Harper v. Bd. of Elections, 383 U.S. 663, 668 (1966) (holding poll tax violates Equal Protection Clause because wealth is irrelevant to citizen's ability to participate in electoral process). Indeed, much of the Supreme Court's basis for intervening in Bush v. Gore was that the fundamental right to vote was at stake. Bush v. Gore, 531 U.S. 98, 115 (2000).
191. Mizrahi v. N. Miami Med. Ctr., 712 So. 2d 826, 828 n.3 (Fla. Dist. Ct. App. 1998) (citing DeAyala v. Fla. Farm Bureau Cas. Ins. Co., 543 So. 2d 204, 206 (Fla. 1989)). It may be objected, of course, that the ACRI's right of initiative is not fully protected since it is an out of state organization, but two considerations defeat this objection. First, as noted above, the FCRI was also supported by the Florida Associated General Contractors, a Florida based organization. Second and more importantly, however, Article XI places no bar on who may offer citizen initiatives. FLA. CONST, art. XI, § 3. Until it does so, there are no such tiers of protection. Beyond the liberty interest of initiative sponsors, it should be added, the electorate is denied a colorable liberty interest when the state supreme court arbitrarily rejects an initiative petition. The first sentence of Article I of the Florida Constitution, we have seen, invests all political power in the people, not the court. Article XI, section 5, moreover, unequivocally establishes the citizenry's right to decide whether to ratify proposed constitutional amendments, from whatever source, i.e., the ultimate right to decide the substance of the law that will govern them, and again, this right is fundamental. As Professor Little writes, "the most fundamental point is this: undertaking to amend the constitution by initiative is an elemental exercise of the inherent sovereignty of the people." Little, supra note 19, at 407.
192. FLA. STAT. ANN. § 99.097(4) (West Supp. 2001).
193. Jameson & Hosack, supra note 28, at 425-27 (citing Jim Smith, So You Want to Amend the Florida Constitution? A Guide to Initiative Petitions, 18 NOVA L. REV. 1509, 1511 (1994)).
194. While we are focused on due process under the United States Constitution, Cooper and Marks observe that under the Florida Constitution, "substantive due process may implicate, among other things...vagueness...[and] the conduct of law enforcement officials." COOPER & MARKS, supra note 166, at 644 (citations omitted).
195. Chicago v. Morales, 527 U.S. 41, 56 (1999). As the Florida Supreme Court has ruled, "our system of jurisprudence is founded on a belief that everyone must be given sufficient notice of those matters that may result in a deprivation of life, liberty, or property." Perkins v. State, 576 So. 2d 1310, 1312 (Fla. 1991).
196. Morales, 527 U.S.at 56.
197. See U.S. CONST, arts. I, II, III (describing different branches of government).
198. See supra notes 22-32 and accompanying text for a discussion of cases arbitrarily enforcing the rules.
199. See supra notes 6-10 and accompanying text for a discussion of the submission of citizens ballot initiatives.
200. See supra notes 22-23 and accompanying text for a discussion of judicial process.
201. See supra notes 169-70 and accompanying text for a discussion of the vagueness doctrine.
202. Hill v. Colorado, 530 U.S. 703, 732 (2000).
203. See supra notes 169-70 and accompanying text for a discussion of the vagueness doctrine.
204. See supra notes 178-80 for a discussion of due process.
205. Frank I. Michelman, Formal and Associational Aims in Procedural Due Process, in NOMOS XVIII: DUE PROCESS 126 (J. Roland Pennock & John W. Chapman eds., 1977) (emphasis added).
206. JOEL M. GORA, DUE PROCESS OF LAW 258 (Franklyn S. Haiman ed., 1977) (emphasis added).
207. Kay,supra note 42, at B11.
208. See supra notes 46-56 and accompanying text for a discussion of the single subject rule.
209. See supra notes 46-56 and accompanying text for a discussion of the single subject rule.
210. See FLA. CONST, art. XI, § 1 (providing amendment to constitution may be proposed by three-fifths of each house of legislature).
211. See supra note 19 for a discussion of the roles of democracy and republicanism in the initiative process.
212. See supra notes 169-70 and accompanying text for a discussion of the vagueness doctrine.
213. Like the term "democracy," terms like "rationality" and "reasonable" merit separate if brief treatment. See supra note 19 for a discussion of "democracy". To begin, although prominent scholars sometimes distinguish the terms, we shall use "reasonable" and "rational" interchangeably. See, e.g., Charles Larmore, Lifting the Veil, THE NEW REPUBLIC, Feb. 5, 2001, at 32, 34 (reviewing JOHN RAWLS, LECTURES ON THE HISTORY OF MORAL PHILOSOPHY (2000) (commenting on difference between "reasonable" and "rational"). As we saw, the Florida Supreme Court has used the standard of the rational voter to test single subject violations, In re Limited Political Terms in Certain Elective Offices, 592 So. 2d 225, 231 (Fla. 1991) (Kogan, J., concurring in part and dissenting in part), and it has defined substantive due process in terms of rational, nonarbitrary state action. See, e.g., State v. Saiez, 489 So. 2d 1125, 1129 (Fla. 1986) (holding statute prohibiting possession of embossing machines violated due process clauses of state and federal constitutions because means were not rationally related to legitimate state interest). As Geoffrey Marshall thus adds, "whether we think of the rule of law or of due process, we could probably agree that its elements consist at least of...rationality...." Geoffrey Marshall, Due Process in England, in NOMOS XVIII: DUE PROCESS 70 (J. Roland Pennock & John W. Chapman eds., 1977). The essence of substantive due process is thus that state action embody a minimum level of rationality, but the FCRI ruling does not even achieve that. It is irrational, as we have seen, that the FCRI violates rather than reinforces equal protection, and that statutory rights are confused with constitutional rights. It might be objected that there is usually some uncertainty in the law. More radically, rationality will be "deconstructed," i.e., critiqued as utterly subjective and thus dismissed. It will be insisted that there is no line between rationality and irrationality and that appellate courts cannot legitimately judge the rationality of law, including lower court decisions. See generally Gerald E. Frog, Jr., The Ideology of Bureacracy in America, in CRITICAL LEGAL STUDIES 181 (Allan Hutchinson ed., 1989) (arguing defenders of bureaucratic organizations fail because they have not been able to distinguish subjective and objective aspects of organizational life, as no line between subjectivity and objectivity can be drawn). The logical consequence of this position, however, is that nothing the Florida court could have done would have been grounds for review. Indeed, there would have been no point in its even writing an opinion. In response to the formal briefs and arguments from the parties and the Attorney General, it would have sufficed simply to have said "thumbs down" or perhaps to have written a poem, so to avoid wasting everyone's time with a sham opinion. This, of course, is a long discussion, but suffice it to say that law would be impossible without the recognition of objective standards of rationality, some minimum level of clarity, of predictability, and reliability, and some distinction between the rational and the irrational. This seems to be what the ancient Greeks meant by logos, or reasoned discourse. See, e.g., H. D. RANKIN, SOPHISTS, SOCRATICS, AND CYNICS 13 (1983) (discussing usage of logos by classical scholars). As Professors Kors and Silverglate thus write: the imperative...that [the] courts develop consistent modes of decision-making...is perhaps the single most important notion in our legal system and the sine qua non of a just, humane, and civilized society. It is a legal "golden rule": give unto others the process to which you feel you are due. ALAN KORS & HARVEY SILVERGLATE, THE SHADOW UNIVERSITY 268-69 (1998). Implicitly recognizing an objective standard of rationality, even prominent affirmative action proponent Professor Dworkin concedes that there are limits on what a state supreme court can do, even interpreting its own state law. In his critique of the Supreme Court's opinion in Bush v. Gore, he wrote that "the Florida Supreme Court...has final authority in interpreting its own state's law so long as the interpretation is not absurd." Ronald Dworkin, A Badly Flawed Election, NEW YORK REVIEW OF BOOKS, Jan. 11, 2001, at 53-54 (emphasis added). The rationality requirement at the heart of due process can thus not simply be dismissed.
214. Like the term "democracy," terms like "rationality" and "reasonable" merit separate if brief treatment. See supra note 19 for a discussion of "democracy". To begin, although prominent scholars sometimes distinguish the terms, we shall use "reasonable" and "rational" interchangeably. See, e.g., Charles Larmore, Lifting the Veil, THE NEW REPUBLIC, Feb. 5, 2001, at 32, 34 (reviewing JOHN RAWLS, LECTURES ON THE HISTORY OF MORAL PHILOSOPHY (2000) (commenting on difference between "reasonable" and "rational"). As we saw, the Florida Supreme Court has used the standard of the rational voter to test single subject violations, In re Limited Political Terms in Certain Elective Offices, 592 So. 2d 225, 231 (Fla. 1991) (Kogan, J., concurring in part and dissenting in part), and it has defined substantive due process in terms of rational, nonarbitrary state action. See, e.g., State v. Saiez, 489 So. 2d 1125, 1129 (Fla. 1986) (holding statute prohibiting possession of embossing machines violated due process clauses of state and federal constitutions because means were not rationally related to legitimate state interest). As Geoffrey Marshall thus adds, "whether we think of the rule of law or of due process, we could probably agree that its elements consist at least of...rationality...." Geoffrey Marshall, Due Process in England, in NOMOS XVIII: DUE PROCESS 70 (J. Roland Pennock & John W. Chapman eds., 1977). The essence of substantive due process is thus that state action embody a minimum level of rationality, but the FCRI ruling does not even achieve that. It is irrational, as we have seen, that the FCRI violates rather than reinforces equal protection, and that statutory rights are confused with constitutional rights. It might be objected that there is usually some uncertainty in the law. More radically, rationality will be "deconstructed," i.e., critiqued as utterly subjective and thus dismissed. It will be insisted that there is no line between rationality and irrationality and that appellate courts cannot legitimately judge the rationality of law, including lower court decisions. See generally Gerald E. Frog, Jr., The Ideology of Bureacracy in America, in CRITICAL LEGAL STUDIES 181 (Allan Hutchinson ed., 1989) (arguing defenders of bureaucratic organizations fail because they have not been able to distinguish subjective and objective aspects of organizational life, as no line between subjectivity and objectivity can be drawn). The logical consequence of this position, however, is that nothing the Florida court could have done would have been grounds for review. Indeed, there would have been no point in its even writing an opinion. In response to the formal briefs and arguments from the parties and the Attorney General, it would have sufficed simply to have said "thumbs down" or perhaps to have written a poem, so to avoid wasting everyone's time with a sham opinion. This, of course, is a long discussion, but suffice it to say that law would be impossible without the recognition of objective standards of rationality, some minimum level of clarity, of predictability, and reliability, and some distinction between the rational and the irrational. This seems to be what the ancient Greeks meant by logos, or reasoned discourse. See, e.g., H. D. RANKIN, SOPHISTS, SOCRATICS, AND CYNICS 13 (1983) (discussing usage of logos by classical scholars). As Professors Kors and Silverglate thus write: the imperative...that [the] courts develop consistent modes of decision-making...is perhaps the single most important notion in our legal system and the sine qua non of a just, humane, and civilized society. It is a legal "golden rule": give unto others the process to which you feel you are due. ALAN KORS & HARVEY SILVERGLATE, THE SHADOW UNIVERSITY 268-69 (1998). Implicitly recognizing an objective standard of rationality, even prominent affirmative action proponent Professor Dworkin concedes that there are limits on what a state supreme court can do, even interpreting its own state law. In his critique of the Supreme Court's opinion in Bush v. Gore, he wrote that "the Florida Supreme Court...has final authority in interpreting its own state's law so long as the interpretation is not absurd." Ronald Dworkin, A Badly Flawed Election, NEW YORK REVIEW OF BOOKS, Jan. 11, 2001, at 53-54 (emphasis added). The rationality requirement at the heart of due process can thus not simply be dismissed.
215. Like the term "democracy," terms like "rationality" and "reasonable" merit separate if brief treatment. See supra note 19 for a discussion of "democracy". To begin, although prominent scholars sometimes distinguish the terms, we shall use "reasonable" and "rational" interchangeably. See, e.g., Charles Larmore, Lifting the Veil, THE NEW REPUBLIC, Feb. 5, 2001, at 32, 34 (reviewing JOHN RAWLS, LECTURES ON THE HISTORY OF MORAL PHILOSOPHY (2000) (commenting on difference between "reasonable" and "rational"). As we saw, the Florida Supreme Court has used the standard of the rational voter to test single subject violations, In re Limited Political Terms in Certain Elective Offices, 592 So. 2d 225, 231 (Fla. 1991) (Kogan, J., concurring in part and dissenting in part), and it has defined substantive due process in terms of rational, nonarbitrary state action. See, e.g., State v. Saiez, 489 So. 2d 1125, 1129 (Fla. 1986) (holding statute prohibiting possession of embossing machines violated due process clauses of state and federal constitutions because means were not rationally related to legitimate state interest). As Geoffrey Marshall thus adds, "whether we think of the rule of law or of due process, we could probably agree that its elements consist at least of...rationality...." Geoffrey Marshall, Due Process in England, in NOMOS XVIII: DUE PROCESS 70 (J. Roland Pennock & John W. Chapman eds., 1977). The essence of substantive due process is thus that state action embody a minimum level of rationality, but the FCRI ruling does not even achieve that. It is irrational, as we have seen, that the FCRI violates rather than reinforces equal protection, and that statutory rights are confused with constitutional rights. It might be objected that there is usually some uncertainty in the law. More radically, rationality will be "deconstructed," i.e., critiqued as utterly subjective and thus dismissed. It will be insisted that there is no line between rationality and irrationality and that appellate courts cannot legitimately judge the rationality of law, including lower court decisions. See generally Gerald E. Frog, Jr., The Ideology of Bureacracy in America, in CRITICAL LEGAL STUDIES 181 (Allan Hutchinson ed., 1989) (arguing defenders of bureaucratic organizations fail because they have not been able to distinguish subjective and objective aspects of organizational life, as no line between subjectivity and objectivity can be drawn). The logical consequence of this position, however, is that nothing the Florida court could have done would have been grounds for review. Indeed, there would have been no point in its even writing an opinion. In response to the formal briefs and arguments from the parties and the Attorney General, it would have sufficed simply to have said "thumbs down" or perhaps to have written a poem, so to avoid wasting everyone's time with a sham opinion. This, of course, is a long discussion, but suffice it to say that law would be impossible without the recognition of objective standards of rationality, some minimum level of clarity, of predictability, and reliability, and some distinction between the rational and the irrational. This seems to be what the ancient Greeks meant by logos, or reasoned discourse. See, e.g., H. D. RANKIN, SOPHISTS, SOCRATICS, AND CYNICS 13 (1983) (discussing usage of logos by classical scholars). As Professors Kors and Silverglate thus write: the imperative...that [the] courts develop consistent modes of decision-making...is perhaps the single most important notion in our legal system and the sine qua non of a just, humane, and civilized society. It is a legal "golden rule": give unto others the process to which you feel you are due. ALAN KORS & HARVEY SILVERGLATE, THE SHADOW UNIVERSITY 268-69 (1998). Implicitly recognizing an objective standard of rationality, even prominent affirmative action proponent Professor Dworkin concedes that there are limits on what a state supreme court can do, even interpreting its own state law. In his critique of the Supreme Court's opinion in Bush v. Gore, he wrote that "the Florida Supreme Court...has final authority in interpreting its own state's law so long as the interpretation is not absurd." Ronald Dworkin, A Badly Flawed Election, NEW YORK REVIEW OF BOOKS, Jan. 11, 2001, at 53-54 (emphasis added). The rationality requirement at the heart of due process can thus not simply be dismissed.
216. Like the term "democracy," terms like "rationality" and "reasonable" merit separate if brief treatment. See supra note 19 for a discussion of "democracy". To begin, although prominent scholars sometimes distinguish the terms, we shall use "reasonable" and "rational" interchangeably. See, e.g., Charles Larmore, Lifting the Veil, THE NEW REPUBLIC, Feb. 5, 2001, at 32, 34 (reviewing JOHN RAWLS, LECTURES ON THE HISTORY OF MORAL PHILOSOPHY (2000) (commenting on difference between "reasonable" and "rational"). As we saw, the Florida Supreme Court has used the standard of the rational voter to test single subject violations, In re Limited Political Terms in Certain Elective Offices, 592 So. 2d 225, 231 (Fla. 1991) (Kogan, J., concurring in part and dissenting in part), and it has defined substantive due process in terms of rational, nonarbitrary state action. See, e.g., State v. Saiez, 489 So. 2d 1125, 1129 (Fla. 1986) (holding statute prohibiting possession of embossing machines violated due process clauses of state and federal constitutions because means were not rationally related to legitimate state interest). As Geoffrey Marshall thus adds, "whether we think of the rule of law or of due process, we could probably agree that its elements consist at least of...rationality...." Geoffrey Marshall, Due Process in England, in NOMOS XVIII: DUE PROCESS 70 (J. Roland Pennock & John W. Chapman eds., 1977). The essence of substantive due process is thus that state action embody a minimum level of rationality, but the FCRI ruling does not even achieve that. It is irrational, as we have seen, that the FCRI violates rather than reinforces equal protection, and that statutory rights are confused with constitutional rights. It might be objected that there is usually some uncertainty in the law. More radically, rationality will be "deconstructed," i.e., critiqued as utterly subjective and thus dismissed. It will be insisted that there is no line between rationality and irrationality and that appellate courts cannot legitimately judge the rationality of law, including lower court decisions. See generally Gerald E. Frog, Jr., The Ideology of Bureacracy in America, in CRITICAL LEGAL STUDIES 181 (Allan Hutchinson ed., 1989) (arguing defenders of bureaucratic organizations fail because they have not been able to distinguish subjective and objective aspects of organizational life, as no line between subjectivity and objectivity can be drawn). The logical consequence of this position, however, is that nothing the Florida court could have done would have been grounds for review. Indeed, there would have been no point in its even writing an opinion. In response to the formal briefs and arguments from the parties and the Attorney General, it would have sufficed simply to have said "thumbs down" or perhaps to have written a poem, so to avoid wasting everyone's time with a sham opinion. This, of course, is a long discussion, but suffice it to say that law would be impossible without the recognition of objective standards of rationality, some minimum level of clarity, of predictability, and reliability, and some distinction between the rational and the irrational. This seems to be what the ancient Greeks meant by logos, or reasoned discourse. See, e.g., H. D. RANKIN, SOPHISTS, SOCRATICS, AND CYNICS 13 (1983) (discussing usage of logos by classical scholars). As Professors Kors and Silverglate thus write: the imperative...that [the] courts develop consistent modes of decision-making...is perhaps the single most important notion in our legal system and the sine qua non of a just, humane, and civilized society. It is a legal "golden rule": give unto others the process to which you feel you are due. ALAN KORS & HARVEY SILVERGLATE, THE SHADOW UNIVERSITY 268-69 (1998). Implicitly recognizing an objective standard of rationality, even prominent affirmative action proponent Professor Dworkin concedes that there are limits on what a state supreme court can do, even interpreting its own state law. In his critique of the Supreme Court's opinion in Bush v. Gore, he wrote that "the Florida Supreme Court...has final authority in interpreting its own state's law so long as the interpretation is not absurd." Ronald Dworkin, A Badly Flawed Election, NEW YORK REVIEW OF BOOKS, Jan. 11, 2001, at 53-54 (emphasis added). The rationality requirement at the heart of due process can thus not simply be dismissed.
217. Like the term "democracy," terms like "rationality" and "reasonable" merit separate if brief treatment. See supra note 19 for a discussion of "democracy". To begin, although prominent scholars sometimes distinguish the terms, we shall use "reasonable" and "rational" interchangeably. See, e.g., Charles Larmore, Lifting the Veil, THE NEW REPUBLIC, Feb. 5, 2001, at 32, 34 (reviewing JOHN RAWLS, LECTURES ON THE HISTORY OF MORAL PHILOSOPHY (2000) (commenting on difference between "reasonable" and "rational"). As we saw, the Florida Supreme Court has used the standard of the rational voter to test single subject violations, In re Limited Political Terms in Certain Elective Offices, 592 So. 2d 225, 231 (Fla. 1991) (Kogan, J., concurring in part and dissenting in part), and it has defined substantive due process in terms of rational, nonarbitrary state action. See, e.g., State v. Saiez, 489 So. 2d 1125, 1129 (Fla. 1986) (holding statute prohibiting possession of embossing machines violated due process clauses of state and federal constitutions because means were not rationally related to legitimate state interest). As Geoffrey Marshall thus adds, "whether we think of the rule of law or of due process, we could probably agree that its elements consist at least of...rationality...." Geoffrey Marshall, Due Process in England, in NOMOS XVIII: DUE PROCESS 70 (J. Roland Pennock & John W. Chapman eds., 1977). The essence of substantive due process is thus that state action embody a minimum level of rationality, but the FCRI ruling does not even achieve that. It is irrational, as we have seen, that the FCRI violates rather than reinforces equal protection, and that statutory rights are confused with constitutional rights. It might be objected that there is usually some uncertainty in the law. More radically, rationality will be "deconstructed," i.e., critiqued as utterly subjective and thus dismissed. It will be insisted that there is no line between rationality and irrationality and that appellate courts cannot legitimately judge the rationality of law, including lower court decisions. See generally Gerald E. Frog, Jr., The Ideology of Bureacracy in America, in CRITICAL LEGAL STUDIES 181 (Allan Hutchinson ed., 1989) (arguing defenders of bureaucratic organizations fail because they have not been able to distinguish subjective and objective aspects of organizational life, as no line between subjectivity and objectivity can be drawn). The logical consequence of this position, however, is that nothing the Florida court could have done would have been grounds for review. Indeed, there would have been no point in its even writing an opinion. In response to the formal briefs and arguments from the parties and the Attorney General, it would have sufficed simply to have said "thumbs down" or perhaps to have written a poem, so to avoid wasting everyone's time with a sham opinion. This, of course, is a long discussion, but suffice it to say that law would be impossible without the recognition of objective standards of rationality, some minimum level of clarity, of predictability, and reliability, and some distinction between the rational and the irrational. This seems to be what the ancient Greeks meant by logos, or reasoned discourse. See, e.g., H. D. RANKIN, SOPHISTS, SOCRATICS, AND CYNICS 13 (1983) (discussing usage of logos by classical scholars). As Professors Kors and Silverglate thus write: the imperative...that [the] courts develop consistent modes of decision-making...is perhaps the single most important notion in our legal system and the sine qua non of a just, humane, and civilized society. It is a legal "golden rule": give unto others the process to which you feel you are due. ALAN KORS & HARVEY SILVERGLATE, THE SHADOW UNIVERSITY 268-69 (1998). Implicitly recognizing an objective standard of rationality, even prominent affirmative action proponent Professor Dworkin concedes that there are limits on what a state supreme court can do, even interpreting its own state law. In his critique of the Supreme Court's opinion in Bush v. Gore, he wrote that "the Florida Supreme Court...has final authority in interpreting its own state's law so long as the interpretation is not absurd." Ronald Dworkin, A Badly Flawed Election, NEW YORK REVIEW OF BOOKS, Jan. 11, 2001, at 53-54 (emphasis added). The rationality requirement at the heart of due process can thus not simply be dismissed.
218. Like the term "democracy," terms like "rationality" and "reasonable" merit separate if brief treatment. See supra note 19 for a discussion of "democracy". To begin, although prominent scholars sometimes distinguish the terms, we shall use "reasonable" and "rational" interchangeably. See, e.g., Charles Larmore, Lifting the Veil, THE NEW REPUBLIC, Feb. 5, 2001, at 32, 34 (reviewing JOHN RAWLS, LECTURES ON THE HISTORY OF MORAL PHILOSOPHY (2000) (commenting on difference between "reasonable" and "rational"). As we saw, the Florida Supreme Court has used the standard of the rational voter to test single subject violations, In re Limited Political Terms in Certain Elective Offices, 592 So. 2d 225, 231 (Fla. 1991) (Kogan, J., concurring in part and dissenting in part), and it has defined substantive due process in terms of rational, nonarbitrary state action. See, e.g., State v. Saiez, 489 So. 2d 1125, 1129 (Fla. 1986) (holding statute prohibiting possession of embossing machines violated due process clauses of state and federal constitutions because means were not rationally related to legitimate state interest). As Geoffrey Marshall thus adds, "whether we think of the rule of law or of due process, we could probably agree that its elements consist at least of...rationality...." Geoffrey Marshall, Due Process in England, in NOMOS XVIII: DUE PROCESS 70 (J. Roland Pennock & John W. Chapman eds., 1977). The essence of substantive due process is thus that state action embody a minimum level of rationality, but the FCRI ruling does not even achieve that. It is irrational, as we have seen, that the FCRI violates rather than reinforces equal protection, and that statutory rights are confused with constitutional rights. It might be objected that there is usually some uncertainty in the law. More radically, rationality will be "deconstructed," i.e., critiqued as utterly subjective and thus dismissed. It will be insisted that there is no line between rationality and irrationality and that appellate courts cannot legitimately judge the rationality of law, including lower court decisions. See generally Gerald E. Frog, Jr., The Ideology of Bureacracy in America, in CRITICAL LEGAL STUDIES 181 (Allan Hutchinson ed., 1989) (arguing defenders of bureaucratic organizations fail because they have not been able to distinguish subjective and objective aspects of organizational life, as no line between subjectivity and objectivity can be drawn). The logical consequence of this position, however, is that nothing the Florida court could have done would have been grounds for review. Indeed, there would have been no point in its even writing an opinion. In response to the formal briefs and arguments from the parties and the Attorney General, it would have sufficed simply to have said "thumbs down" or perhaps to have written a poem, so to avoid wasting everyone's time with a sham opinion. This, of course, is a long discussion, but suffice it to say that law would be impossible without the recognition of objective standards of rationality, some minimum level of clarity, of predictability, and reliability, and some distinction between the rational and the irrational. This seems to be what the ancient Greeks meant by logos, or reasoned discourse. See, e.g., H. D. RANKIN, SOPHISTS, SOCRATICS, AND CYNICS 13 (1983) (discussing usage of logos by classical scholars). As Professors Kors and Silverglate thus write: the imperative...that [the] courts develop consistent modes of decision-making...is perhaps the single most important notion in our legal system and the sine qua non of a just, humane, and civilized society. It is a legal "golden rule": give unto others the process to which you feel you are due. ALAN KORS & HARVEY SILVERGLATE, THE SHADOW UNIVERSITY 268-69 (1998). Implicitly recognizing an objective standard of rationality, even prominent affirmative action proponent Professor Dworkin concedes that there are limits on what a state supreme court can do, even interpreting its own state law. In his critique of the Supreme Court's opinion in Bush v. Gore, he wrote that "the Florida Supreme Court...has final authority in interpreting its own state's law so long as the interpretation is not absurd." Ronald Dworkin, A Badly Flawed Election, NEW YORK REVIEW OF BOOKS, Jan. 11, 2001, at 53-54 (emphasis added). The rationality requirement at the heart of due process can thus not simply be dismissed.
219. Like the term "democracy," terms like "rationality" and "reasonable" merit separate if brief treatment. See supra note 19 for a discussion of "democracy". To begin, although prominent scholars sometimes distinguish the terms, we shall use "reasonable" and "rational" interchangeably. See, e.g., Charles Larmore, Lifting the Veil, THE NEW REPUBLIC, Feb. 5, 2001, at 32, 34 (reviewing JOHN RAWLS, LECTURES ON THE HISTORY OF MORAL PHILOSOPHY (2000) (commenting on difference between "reasonable" and "rational"). As we saw, the Florida Supreme Court has used the standard of the rational voter to test single subject violations, In re Limited Political Terms in Certain Elective Offices, 592 So. 2d 225, 231 (Fla. 1991) (Kogan, J., concurring in part and dissenting in part), and it has defined substantive due process in terms of rational, nonarbitrary state action. See, e.g., State v. Saiez, 489 So. 2d 1125, 1129 (Fla. 1986) (holding statute prohibiting possession of embossing machines violated due process clauses of state and federal constitutions because means were not rationally related to legitimate state interest). As Geoffrey Marshall thus adds, "whether we think of the rule of law or of due process, we could probably agree that its elements consist at least of...rationality...." Geoffrey Marshall, Due Process in England, in NOMOS XVIII: DUE PROCESS 70 (J. Roland Pennock & John W. Chapman eds., 1977). The essence of substantive due process is thus that state action embody a minimum level of rationality, but the FCRI ruling does not even achieve that. It is irrational, as we have seen, that the FCRI violates rather than reinforces equal protection, and that statutory rights are confused with constitutional rights. It might be objected that there is usually some uncertainty in the law. More radically, rationality will be "deconstructed," i.e., critiqued as utterly subjective and thus dismissed. It will be insisted that there is no line between rationality and irrationality and that appellate courts cannot legitimately judge the rationality of law, including lower court decisions. See generally Gerald E. Frog, Jr., The Ideology of Bureacracy in America, in CRITICAL LEGAL STUDIES 181 (Allan Hutchinson ed., 1989) (arguing defenders of bureaucratic organizations fail because they have not been able to distinguish subjective and objective aspects of organizational life, as no line between subjectivity and objectivity can be drawn). The logical consequence of this position, however, is that nothing the Florida court could have done would have been grounds for review. Indeed, there would have been no point in its even writing an opinion. In response to the formal briefs and arguments from the parties and the Attorney General, it would have sufficed simply to have said "thumbs down" or perhaps to have written a poem, so to avoid wasting everyone's time with a sham opinion. This, of course, is a long discussion, but suffice it to say that law would be impossible without the recognition of objective standards of rationality, some minimum level of clarity, of predictability, and reliability, and some distinction between the rational and the irrational. This seems to be what the ancient Greeks meant by logos, or reasoned discourse. See, e.g., H. D. RANKIN, SOPHISTS, SOCRATICS, AND CYNICS 13 (1983) (discussing usage of logos by classical scholars). As Professors Kors and Silverglate thus write: the imperative...that [the] courts develop consistent modes of decision-making...is perhaps the single most important notion in our legal system and the sine qua non of a just, humane, and civilized society. It is a legal "golden rule": give unto others the process to which you feel you are due. ALAN KORS & HARVEY SILVERGLATE, THE SHADOW UNIVERSITY 268-69 (1998). Implicitly recognizing an objective standard of rationality, even prominent affirmative action proponent Professor Dworkin concedes that there are limits on what a state supreme court can do, even interpreting its own state law. In his critique of the Supreme Court's opinion in Bush v. Gore, he wrote that "the Florida Supreme Court...has final authority in interpreting its own state's law so long as the interpretation is not absurd." Ronald Dworkin, A Badly Flawed Election, NEW YORK REVIEW OF BOOKS, Jan. 11, 2001, at 53-54 (emphasis added). The rationality requirement at the heart of due process can thus not simply be dismissed.
220. See supra notes 178-80 and accompanying text for a discussion of due process.
221. Kay, supra note 42, at B11.
222. 531 U.S. 70(2000) (per curiam).
223. Bush, 531 U.S. at 78 (vacating Florida Supreme Court decision because unclear as to whether it rested on state or federal grounds).
224. ANDREW KULL, THE COLOR BLIND CONSTITUTION 1-7 (1992).
225. See supra notes 46-142 and accompanying text for a discussion of FCRI Advisory Opinion.
226. See supra notes 46-142 and accompanying text for a discussion of FCRI Advisory Opinion.
227. See supra notes 153-65 and accompanying text for a discussion of the United States Supreme Court's involvement in voting issues examined in state court due process proceedings.
228. See supra notes 46-142 and accompanying text for a discussion of FCRI Advisory Opinion.