My diary from Sunday, Getting That Next Vote On the Budget, got a lot of discussion, although a bit to my surprise, not the discussion I was expecting.
My goal was to get people to discuss how best to get the state’s annual budget passed. What we got, instead, was a pretty passionate debate about the wisdom of using the state constitution’s recall mechanism as a tactic for doing this.
By the end of the discussion, I realized that there’s a meta-discussion to be had about this: why is it that some of us feel that this was about the only tactic available, and why some of us felt that certain tactics should not be used. This is not that different an argument from what you hear about impeachment of Bush, Cheney and others. Since the budget needs to pass out annually, this is indeed odd.
I think the underlying question (meta-question for you meta-people) is how our system of government in California — our constitution, in the broad, British sense of the word — is so completely busted. And that the actual legal framework — the 100+ page document that makes up California’s written constitution — has become unworkable.
What do we do about this?
I make this distinction between our unwritten constitution and the actual document because the American constitutional tradition makes the question of how we govern ourselves clearer, by assuming that the system of government can be specified in a document, and less clear, because it assumes that what is not found in the document is not truly part of the system.
But this use of written constitutions was an American innovation, made by the colonial governments as they broke from British rule. They broke with the British definition of a constitution, as it had been developed in the previous 200 years of English history, as Parliament gradually mastered the ultimate in Unitary Executives, the Tudor and Stewart monarchs.
Here’s the definition that English theorists (who our Founders knew very well) came up with:
A contrast is sometimes made between written and unwritten constitutions. Britain, it is said, has an unwritten constitution. But the distinction is overdrawn. Britain is unusual in that there is no single document which can be called the formal constitution. The constitution in Britain is scattered through hundreds of Acts of Parliament and judicial rulings. But the description of Britain as having an unwritten constitution usually focuses on another attribute-the importance of conventions. Some of Britain’s most important constitutional rules are constitutional conventions. There is a convention that the monarch acts on the advice of his or her ministers: there is no direct legal compulsion on the monarch to do this, but he or she invariably does. By convention, a government clearly defeated on a vote of confidence in the House of Commons either resigns or holds a general election.
To understand what’s gone wrong with our system in California, this broader view of a constitution is essential, since it leads us to ask: who actually rules, who are the stakeholders, and what restraints, both legal and customary, are we operating under. The written constitution exists in that context, but is only a piece of it.
A good document can help, and current document limits the perogatives of both the executive and the legislature, and not necessarily in favor of the people. I’d argue strongly, for example, that corporations and their lobbyists are as much of our system of government — our constitution in the large — as the nobility was in England.
The great constitutional trend in England and Britain was taking first the monarchy, and then, the nobility, and making them subordinate to popular will.
The great constitutional trend in the United States since after US Civil War has been to take the legislatures and the executives, and increasingly make them subordinate to the will of a new nobility, one based upon corporate assets and corporate institutions.
I think that this is the underlying problem with the California Constitution: corporate money has used the initiative system to gradually strangle the ability of the legislature to represent popular will, starting with Proposition 13 in 1978, and continuing to limits like this 2/3 requirement for passing a budget today. This weakness of the legislature cannot be fixed within the current constitutional framework. We will need to radically change the framework to fix the mess we are in.
What kind of change do we need here? It’s clear that the reforms of 100 years ago, from during the Progressive Era, have run their course, and no longer serve either the purposes or even the constituencies that Hiram Johnston and others intended. These reforms, which were intended to master, even then, corporate interests like the great railroads, have now been co-opted by the railroad executive’s spiritual heirs, our modern, 21st century robber barons.
How do we best understand this problem? How do we best fix it?
