Responding to Erwin Chemerinsky on the Constitutional Convention

The Dean of the UCI Law School, the eminent and rightly respected Erwin Chemerinsky, claims a Constitutional Convention will fail in today’s LA Times. He draws upon his experience chairing an LA City Charter revision commission in the late ’90s to suggest that although California’s Constitution is clearly broken and in need of change, a Convention will come apart on the same political rocks that have previously prevented change:

My experience as chairman of a similar convention — an elected commission created in 1997 to propose a new Los Angeles city charter — makes me skeptical that a constitutional convention can provide a solution to the serious problems that face the state….

Even if there is a constitutional convention, and even if it does come up with a coherent and meaningful package of proposed changes, it’s uncertain that that package would ever be adopted. There are countless controversial issues that could doom it….

I have no real objection to a convention. I just don’t believe we can count on it to solve our problems — and certainly not in a timely fashion.

Chemerinsky’s points are worth considering, even if I ultimately disagree with them. Neither myself nor the Courage Campaign (where I work as Public Policy Director) believe that a Convention is the only way to reform the state. Chemerinsky calls for putting an initiative on the ballot in 2010 to eliminate the 2/3rds rule, and both myself and the Courage Campaign completely agree with that. Restoring democracy to the initiative process cannot wait for a Convention. It needs to happen as soon as possible.

That being said, I think Chemerinsky is not taking into consideration some fundamental differences between the LA City Charter review process and a Constitutional Convention for California.

The primary difference is context. In the late 1990s California was enjoying prosperity, and that made it seem like government was working well enough. There was no crisis, no immediate and obvious reason to change the LA City Charter, even though there were certainly ways it could have been improved. In the absence of a sense of crisis, there was no momentum to carry through the proposed changes over the opposition of the interests Chemerinsky alluded to.

We are in a completely opposite situation today. California is suffering from the worst economic downturn since the Great Depression. Our government is distrusted and disdained by large majorities of the population. And the failure of government has been made obvious to everyone. There are two fundamental things that American government must do – protect rights and promote prosperity. California’s government is failing us on both points.

Californians are fed up with the status quo. They are looking for inspiration, hope, and change. A Constitutional Convention, properly convened, limited to focus on structural problems and that proposes sensible solutions, can inspire people to overcome the obstacles to change. Especially since CA in 2009 isn’t LA in 1999.

Chemerinsky is right, of course, that voters might reject the proposals put forward by a Convention. But then that’s the nature of constitution-making in America. The US Constitution came within a hair of being rejected – had a few votes gone a different way in Massachusetts and Virginia, the Anti-Federalists would have prevailed and the status quo would have continued even in spite of the dire economic crisis of the 1780s.

That’s a risk we have to take. California’s government is broken, and now many people are going to suffer as a result. I’m willing to try and fail rather than not try at all.

33 thoughts on “Responding to Erwin Chemerinsky on the Constitutional Convention”

  1. Chemerinsky refers to the LA City Charter. He chaired one of the two commissions which put together a new city charter.  In that charter, there is a provision that the Los Angeles City Attorney would prosecute all misdemeanors occurring in the City of Los Angeles.  (That would include all misdemeanor violations of the state Penal Code, Health & Safety Code, etc.)

    The problem with this is that there is no provision in state law for any City Attorney to prosecute such cases.  That is reserved for the District Attorney or, in certain circumstances, the Attorney General.  Quite rightly, the Public Defender of Los Angeles County, Michael Judge, began to challenge the City Attorney’s jurisdiction in numerous ways.  Chemerinsky immediately began a public campaign to belittle the Public Defender for having the temerity to challenge his (Chemerinsky’s) work.

    State law does provide for a city Public Prosecutor.  Indeed, such a position exists in the City of Long Beach.  Alternatively, a City Attorney may prosecute misdemeanors if he or she is given permission to do so by the District Attorney.  The Los Angeles City Attorney is currently operating on permission given by District Attorney John Van de Kamp, who left that office in 1982.

    Chemerinsky and his group were sloppy.  Rather than admit his mistake, he chose to attack.  He is not terribly good at his job and is a bit too full of himself.

  2. Chemerinsky doesn’t say it will fail.  He says it will face enormous hurdles, and that it won’t take place soon enough to solve the current budgetary crisis.  He’s right.  I don’t see any disagreement from what you say and what he does, really.

    His basic premise:

    I have no real objection to a convention. I just don’t believe we can count on it to solve our problems — and certainly not in a timely fashion. Therefore, even if convention proponents continue to move toward establishing one, action must still be taken now to address California’s most serious problems.

    Isn’t that what the progress movement appears to be coalescing behind?

    He also says:

    There are countless controversial issues that could doom it. For example, if the revised constitution protects a right to marriage equality for gays and lesbians, a significant number of voters will oppose it on that basis alone. But if the new constitution does not protect a right to marriage equality, others will vote against it for that reason. The same impasse could arise over abortion rights, affirmative action or benefits for undocumented immigrants.

    Again, I don’t really disagree with him.  A good Constitution (see: the US Constitution) stays out of the weeds of individual contemporary issues and simply establishes a baseline of individual rights and equality.  If we start putting individual statements about marriage or abortion or anything else in there, it withers and dies on the vine.  Simply create protections for rights, don’t allow them to be stripped in the initiative process, and then let the Supreme Court do its job and interpret it.

    So I guess I don’t see the area of disagreement.  Calitics and him have both concluded that a new Constitutional Convention is needed, but won’t come fast enough to fish the state out of the ocean, basically.

  3. With the CA Supreme court abdicating power to the people, I think a list of government reforms initiatives would be the most effective means of creating change.  Or one initiative with everything in it.  Budget reform, Fiscal reform, election reform, and initiative reform.

    But of course I’d like to read it first.

    One advantage of that over a constitutional convention is that what goes before the people isn’t subject to compromise with a dishonest minority.  And they will oppose anything that comes out of the convention just as likely as they are to oppose a comprehensive set of reforms from progressives.  

    So why bother tainting the results to appease a group that is determined to obstruct anything except dismantling the government completely.

    Instead, use the internet to allow the people (interested in the process at all) to join in and WRITE the reforms ourselves – some sort of Wiki or what not – so that at the very least, the end result will the be result of an open process.

  4. Marx gives the correct answer — “a political struggle”, even if he missed the one about the 1949 World Cup final.

    Getting a convention will require a real political movement that can actually influence the various initiative votes that will precede it, and will be able to elect people of some stature (law professors, for example) to the convention. We’re not there yet.

    But if we intend to be there, now is the time to start building in that direction.

  5. While there are a number of big convention-worthy issues, there’s no guarantee any particular group of folks will be elected as delegates to a Constitutional Convention.  The mess didn’t happen overnight – it won’t be fixed overnight.  In particular, a call for a magical convention won’t necessarily result in a dream team of conventioneers.

    But here’s the magic: Change 2/3 to anything less than 2/3 and most of the budget gridlock ends.  At least the pressure shifts to the Governor’s veto pen.

    The state needs to close the budget gap and the process is straightforward: increase revenue and decrease expenditures.  A majority of Californians knows we must do both.

    The minority Republicans want only to decrease expenditures with zero increases to revenue – regardless of who is impacted by cuts.  The Democrats want a mix of revenue increases and expenditure decreases.

    Relatively simple.  Get 2/3 out of the way.

  6. He was at the Sacramento meeting.   Can you keep a hard spending cap out of the Constitutional changes?   How about mid-year Cost of Living Adjustment vetoes by the Governor?

    “Entitlement reform?” — i.e., change mandated spending?

    All of this could look reasonable to the Bay Area Council business folks.  

  7. I have posted two Articles I wrote to put before the Voters of California to call our Constitutional Convention.  I did this on my own.  I have no backing, special interest group I represent, nothing – except I am a human being and a California Citizen – born and raised.  As soon as I can secure the $400 Filing Bond Expense, I will file these – to open up all 35 Articles in our State Constitution for reform, repeal, re-write, and addition.  The process is fair.  I trust in the wisdom of the common effort.  Here is where you can read what I have written, and make up your own mind, if you would rather join in the Courage Campaign effort with Chevron and others, or if you like Arnold’s Dream Team solution, or if you want to fix all of the structural problems.  Thank you for your thoughtful consideration.  The Articles are here:

    The California Community Action Network is here:


    I am just one guy and I need help.  If this matters to you, we must be willing to go to any lengths to make it happen.  I am in 100%.  I hope you join me.

  8. Edwin Chemerinsky alleges California’s “Constitution is deeply flawed.” (Constitutional convention is wrong for California SLO Tribune 5/31/9)

    He confirms the State’s obvious fiscal crisis caused by the Democrats but erroneously alleges that the citizen mandated two-thirds vote is causing the problem. He insists that, “an initiative should be placed on the ballot” to eliminate the provision in the Constitution.  

    Chemerinsky is right in asserting that a Constitutional convention would be controversial and take too long to correct the State’s financial problem. But, he is wrong in believing the remedy would be the elimination of the two-thirds vote required for budget approval.

    Chemerinsky ignores the obvious problem caused by the Democrats. The fact is proven that the budget proposals by the Democrats – if approved – would not have solved California’s deepening financial crisis. A simple majority would have approved a bad budget! Programs must be cut!

    Chemerinsky’s analysis does not define the problem. And what is that problem? It is the financial budgetary excess that now exists yielding multiple billions of debt.

    The two-thirds requirement is the citizen’s mandated direction. It constrains the Democrat’s reckless spending that has pushed the State to the brink of bankruptcy. The Democrats should obey the law as stated in the Constitution – achieve a two-thirds consensus and put the State’s financial affairs in order.  

  9. In a recent OP-ED piece, Dean Erwin Chemerinsky of UC Irvine did not mince words: “The California Constitution is deeply flawed and desperately needs revision.” Well said. However, Mr. Chemerinksy remained cool to the idea of Constitutional Convention out of respectable reservations that such a convention would become mired in ideological gridlock and that reform would not come soon enough. While we share Mr. Chemerinksy’s dour assessment of California’s state government, we disagree with him on the solution.  

    During the past twenty years, control of California’s executive and legislative branches have passed between the hands of both Democrats and Republicans. Even as it became inescapably clear that California’s budget system was unsustainable, Sacramento, under the leadership of both parties, failed to act. We have reached a phase where we’ve tried incrementalism in the Capitol, and we’ve tried it at the ballot box. It doesn’t work. The system itself is broken and a focused rewrite has become necessary.

    It is argued that a Constitutional Convention could degenerate into an ideological morass. Mr. Chemerinksy is right to note that a convention could be limited to avoid social issues and focus exclusively on state finance and political reform, but warns that even a limited convention would still be vulnerable to ideological fervor over tax issues like Prop. 13. We believe this problem could be avoided by providing for non-elected convention delegates picked from the Jury rolls. Part of the difficulty in governing California is the deep (and bipartisan) distrust voters have in elected officials. We saw this distrust on display May 19, when voters soundly rejected a compromise package fashioned by a handful of state leaders in a back room in Sacramento. An open constitutional convention of delegates from beyond the political class could offer the type of honest reforms California needs, with the legitimacy politicians lack.

    Approval of a new constitution via a Constitutional Convention would take time (perhaps two election cycles) and California faces a $21 billion deficit today. Obviously, hard decisions and reforms are needed right now. But just as obvious is how we got here: too great an emphasis on short term fixes and not enough foresight into strategic long-term growth. California has too much potential and too many great minds to go on hobbling into the 21st Century living hand-to-mouth, crisis-to-crisis.

    This much is certain: nobody is in favor of maintaining the status quo. There is a reason for this. James Madison, when writing the document that would become the US Constitution, said of the flailing government under Articles of Confederation, “The current system neither has nor deserves advocates”. In California, we find ourselves in a strikingly similar position. A Limited Constitutional Convention could be more than simply the least bad solution to the state’s woes. It could give regular Californians a chance to push aside elected officials, and craft enduring reforms that will breathe new life into the California dream.

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