The nation’s two megastates are poised to embark on constitutional experiments of a scale not seen since Philadelphia in 1787. Prominent New York leaders want to call a convention to enact term limits, an unfettered initiative process, and a limit on the legislature’s ability to raise taxes. Guess what? Californians have been there, done that, and lived to regret it. Current calls for reform in California focus on exactly the opposite: loosening term limits, restraining the initiative process, and giving a simple majority of legislators the ability to raise taxes.
So here’s a proposal that could save both states the time, expense, and uncertainty of holding constitutional conventions: let’s swap constitutions. We could try it for five years, just to see if the governmental grass really is greener on the other side of the country.
If constitutional swapping sounds too much like an unfortunate new offering from Fox’s TV lineup, the two states could instead learn the obvious lessons from their mirror-image political movements: first, things can always get worse, and not every reform will be for the better; second, every solution can bring unanticipated consequences, especially if states don’t learn from each other. So rather than have to say, “We told you so,” may we offer New York a few painful lessons that we’ve learned out West?
Term limits have put an end to political sinecures and helped to elect a legislature that looks more like the rest of California. But they have also notoriously weakened the legislative branch. They have ensured that the leaders who wrote California’s budgets in the boom years could rest assured that they would be out of power and no longer accountable in the bust years. This kind of political moral hazard is among the major reasons that California is now saddled with massive deficits.
Similarly, a plethora of well-intentioned initiatives have authorized checks that elected officials could not cash because initiatives are not required to identify a funding source. The requirement that all tax bills pass with a two-thirds supermajority chronically paralyzes the legislature at budget time, robbing it of the flexibility to deal with recessions by balancing spending cuts with tax increases, even when desired by most voters.
What New York has to teach California is that a constitutional convention can fail to achieve any reform at all, as happened in the Empire State in 1967. New Yorkers called a convention charged with reapportioning the state’s legislative districts, but the debate quickly deteriorated into bitter fights over welfare policy, state funding of religious schools, and racial discrimination in education. Voters split along partisan and geographic lines when convention delegates presented them with an omnibus package of proposed constitutional changes, which were rejected at the polls.
California cannot afford to waste this moment of reform by failing to learn the lessons of New York.
Changing a state constitution looks easy. Unlike the U.S. Constitution—which has been amended only seventeen times since the Bill of Rights was passed in 1789—most states’ constitution writers expected their foundational documents to be altered frequently. Californians have overdone it, amending the state constitution more than five hundred times in the past one hundred years via citizen initiatives and measures put on the ballot by the legislature. We now seem poised to scrap the whole patchwork mess (which is longer than any national constitution, save India’s) and start over by holding a constitutional convention, just as many in New York are proposing. A mid-October Field Poll indicated that 51 percent of Californians agree that the constitution needs “fundamental changes.”
Both states should look to history. Start with Philadelphia in 1787: the genius of the Constitutional Convention was that it combined democratic innovation with a close look at what had succeeded and, just as important, what had failed in other democracies. The delegates were keenly aware of the strengths and flaws in Britain’s constitutional monarchy, in their own Articles of Confederation, and in the several colonial charters under which many of them had served. They were serious students of Athenian and Roman governments and even drew from the Holy Roman Empire. They carefully debated what to emulate and what to avoid.
As Justice Louis Brandeis famously opined, “It is one of the happy incidents of the federal system that a single, courageous state may, if its citizens choose, serve as a laboratory and try novel social and economic experimentation without risk to the rest of the country.”
The trouble is, the genius of this system works only if states actually examine whether each other’s experiments were successful or not.