Responding to Erwin Chemerinsky on the Constitutional Convention

Chemerinsky is no authority (0.00 / 0)

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.

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by: Doll @ Thu May 28, 2009 at 20:23:17 PM UTC

I was not around for the LA City Charter controversy. (8.00 / 1)

But within the legal community, Chemerinsky is synonymous for Constitutional Law; he is the standard for expertise on Constitutional issues.  No lawyer has made it through law school without reading his books, studying his texts, or using his review courses through Bar/BRI.  Agree or disagree with him, and I'm not ascribing divinity to him, but at least take him seriously.

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by: auron renouille @ Thu May 28, 2009 at 20:43:29 PM UTC

[ Parent ]

Constitutional issues (0.00 / 0)

Actually, for Constitutional issues, I rely on Laurence Tribe.  I would never rely on Chemerinsky for anything.  I would also note that he is not licensed to practice law in California.

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by: Doll @ Fri May 29, 2009 at 00:08:01 AM UTC

[ Parent ]

His position doesn't require him to be. (0.00 / 0)

Not inappropriate.  He's dean of a school, which isn't the practice of law.  I was actually unaware (surprisingly) that he had moved from UNC.

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by: auron renouille @ Fri May 29, 2009 at 00:44:10 AM UTC

[ Parent ]

Right, and is that last grace note you include (0.00 / 0)

there because you think that California licensure is important for understanding federal Constitutional issues?

I don't know about the merits of your other claims, but "I would never rely on Chemerinsky for anything" makes it sound like you have an axe to grind.  I'll continue to trust his scholarship over the opinion of your own pseudonymous self.

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by: Seneca Doane @ Fri May 29, 2009 at 01:13:57 AM UTC

[ Parent ]

Chemerinsky's problem (3.00 / 1)

In a nuthshell, he wrote a provision for the Los Angeles City Charter which was at odds with state law.  When his error was used in Court against the Los Angeles City Attorney, Chemerinsky attacked the messenger.  That is why I mention his not being licensed in California.  Of course, one needn't be licensed in order to look up the statutes and get the thing right in the first place.  Even the little things should be done correctly.

I find his attacks on his critics to be appalling.  He should admit that he made a mistake.  If he can't take the care to look up a few simple California statutes, why should anyone trust him on Constitutional law?

He is arrogant in the extreme.

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by: Doll @ Fri May 29, 2009 at 01:27:43 AM UTC

[ Parent ]

I would certaintly want to hear his side of the story (0.00 / 0)

before concluding that he made a mistake and -- even more improbably -- acted so intemperately.  But the totalizing reaction of you criticism of him stikes me as very strange.  If it's based solely on this issue, fine, but among progressives your mistrust of him strikes me as highly idiosyncratic.

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by: Seneca Doane @ Fri May 29, 2009 at 01:45:20 AM UTC

[ Parent ]

What's wrong with being idiosyncratic? (0.00 / 0)

I find that I view many things differently from the rest of my fellow Southern Californians.  One must remember that we live in an incredibly authoritarian area of the nation.  Indeed, one of our problems is that we are separated from the rest of the country.  There is no cross-pollination, as it were, such as occurs when folks live somewhat closer together.

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by: Doll @ Fri May 29, 2009 at 02:31:50 AM UTC

[ Parent ]

I am licensed in California (0.00 / 0)

And that's not the kind of thing you either learn or are responsible for when sitting for the examination for said license.  Having said that, I don't know the context of what you mean.

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by: auron renouille @ Fri May 29, 2009 at 04:59:16 AM UTC

[ Parent ]

Well, not quite. (5.00 / 1)

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.

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by: auron renouille @ Thu May 28, 2009 at 20:40:11 PM UTC

The movement for a convention (0.00 / 0)

Is planning to exclude social issues. As one of the largest organizations working for marriage equality, the Courage Campaign will not, in fact, reject a package of constitutional reforms that does not deal with marriage equality. Chemerinsky was saying that even a limited convention that ignores the Prop 8 issue would not get support, and I think he is simply wrong about that.

He also mentions people rejecting changes to Prop 13. Since the convention is probably not going to fiddle with the residential property tax rules, I don't see this being a problem either.

My point is that Chemerinsky's concerns might have held up were it still 1999. But it isn't. The crisis is so vast that it means people are more willing to support fundamental change.

You can check out any time you like but you can never leave

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by: Robert Cruickshank @ Thu May 28, 2009 at 20:56:10 PM UTC

[ Parent ]

I just don't think he's saying what you think he's saying (0.00 / 0)

You said:

Chemerinsky was saying that even a limited convention that ignores the Prop 8 issue would not get support, and I think he is simply wrong about that.

I read what he says to say "Don't put all of your eggs in one basket - if we wait until a Constitutional Convention to resolve all of these issues and then the whole thing blows up, we'll be in even worse shape."

He's right.  It may not blow up.  But it could.  I don't think it will.  But it could.  I don't see anywhere in there saying "don't go to Convention" - just "don't count on a Convention as your deus ex machina."

To quote:

It's not that I disagree about the roots of the crisis. The California Constitution is deeply flawed and desperately needs revision. The requirement that the budget as well as any tax hikes must be approved by a two-thirds vote in the Legislature ensures legislative gridlock and is a large part of why the state is now in such desperate financial shape. The overused initiative process has led to a host of unfunded, voter-passed programs that distort the state's spending priorities. Term limits have robbed the Legislature of experienced leaders and legislators.

I really don't think there's any major disagreement here.

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by: auron renouille @ Thu May 28, 2009 at 21:08:33 PM UTC

[ Parent ]

well, except ... (0.00 / 0)

that if you undo the 2/3rds requirement you are giving the majority the ability to fiddle with property taxes as they see fit.  It should be that way (and if they raise mine I'll vote them out!) but more to the point, it will be said that any change to 2/3rds is an effort to raise taxes ... and of course it is, but what people don't get, generally, is that the taxes being raised need not be theirs ... which is the whole point anyway.

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by: David in Burbank @ Thu May 28, 2009 at 21:14:16 PM UTC

[ Parent ]

It's good to see (0.00 / 0)

represented here the belief that the only good tax is the tax someone else pays.

Heartwarming, really.

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by: jsw @ Thu May 28, 2009 at 21:33:53 PM UTC

[ Parent ]

My own hope, without addressing the merits, is that (0.00 / 0)

this simply opens up a productive dialogue on the subject between the likes of him and the likes of us.

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by: Seneca Doane @ Fri May 29, 2009 at 01:15:25 AM UTC

[ Parent ]

You know what would be very helpful? (0.00 / 0)

For people here (and elsewhere) to draft a Constitutional revision ourselves -- or three of them, good, better, and best -- via Wiki so that we're talking about something concrete.  That might help shed light on dangers, limitations to impose on the process, what's to be gained, etc.

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by: Seneca Doane @ Fri May 29, 2009 at 01:48:36 AM UTC

[ Parent ]

Actually (0.00 / 0)

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.

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by: David in Burbank @ Thu May 28, 2009 at 21:00:50 PM UTC

Not possible (5.00 / 1)

One initiative with every issue in it would plainly violate the single subject rule.  Unless you want to present people with a slate of 10-15 propositions, you have to go through Convention so that you can basicallly bring a single omnibus referendum.

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by: auron renouille @ Thu May 28, 2009 at 21:09:50 PM UTC

[ Parent ]

ah - well, so much for that idea. (0.00 / 0)

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by: David in Burbank @ Thu May 28, 2009 at 21:15:02 PM UTC

[ Parent ]

I'd like to see a rolling progressive reform (0.00 / 0)

of the constitution, with backers proposing, say, the 3 most important changes at each election.  Not so many that you drive people crazy with propositions, but not so few that nothing gets done.  Start with eliminating the 2/3 rules on budget and taxes; requiring propositions creating supermajorities to pass by the same supermajority; and a minimal change to term limits (such as increasing assemblymembers from 6 to 8 years, the same as the senate, which is a small change I think would pass).  Next time, take the next 3 top reforms.  Hey, I can dream.

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by: DavidT @ Thu May 28, 2009 at 21:45:01 PM UTC

[ Parent ]

Do you have the money to do this? (5.00 / 1)

One benefit of a Constitutional Convention is not only that you can do a bunch of stuff at once, but for a cheaper cost. All those ballot initiative campaigns are extremely costly.

You can check out any time you like but you can never leave

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by: Robert Cruickshank @ Thu May 28, 2009 at 21:58:10 PM UTC

[ Parent ]

I don't, but there are those who do. (0.00 / 0)

For instance, CTA spent at least $8.2 million to support 1A-1B.

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by: DavidT @ Thu May 28, 2009 at 23:46:31 PM UTC

[ Parent ]

That won't happen again (8.00 / 1)

CTA is in no position to spend that kind of money again. I have to believe that was a last ditch (and ultimately stupid) effort. I cannot imagine they can pull that off again anytime soon, especially as they're about to lose thousands of members due to layoffs.

You can check out any time you like but you can never leave

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by: Robert Cruickshank @ Thu May 28, 2009 at 23:49:32 PM UTC

[ Parent ]

Right, but (0.00 / 0)

that was more an illustration of what can be done, rather than a specific recommendation.  There are many groups and individuals with money in the state.  If they felt as motivated as CTA did about 1A-1B, there would be funding.

Also worth considering is who would have motivation to spend heavily to block such reforms.  The right may go bananas about repealing the 2/3 rules, but do they have people who will write huge checks to stop it?  The recession affects them also.

A convention would certainly be a convenient way of doing many things at once -- if you could have confidence about what it would do, and felt there was a likelihood of adopting its proposals.  I'm still skeptical about both of those corners of the puzzle, but I'm listening.

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by: DavidT @ Fri May 29, 2009 at 00:00:06 AM UTC

[ Parent ]

It's been done before... (0.00 / 0)

When I started voting back in the early 70's there were propositions on the ballot almost every year that were "editorial" in nature.

[In 1962] the electorate approved the creation of a California Constitution Revision Commission, which worked on a comprehensive revision of the constitution from 1964 to 1976. The electorate ratified the Commission's revisions in 1966, 1970, 1972, and 1974, but rejected the 1968 revision, whose primary substantive effect would have been to make the state's superintendent of schools into an appointed rather than an elected official.[7] In the end, the Commission managed to remove about 40,000 words from the constitution.[8]

http://ballotpedia.org/wiki/in...

These Props had little or no impact on state finances or statutory law. The League of Women Voters did a good job of explaining them to those who were interested, and all but one were approved by the voters.

This may or may not work with high stakes issues like the 2/3 budget vote. But frankly, I'm alarmed by the thought of a convention in today's hypercharged mass-media environment.

Are there any examples to draw upon? Has any other state done this in recent memory? All I can think of is the new constitution adopted by South Africa in 1996, for which the members of Parliament sat as the Constitutional Assembly.

http://en.wikipedia.org/wiki/C...

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by: jjohnjj @ Thu May 28, 2009 at 23:00:41 PM UTC

[ Parent ]

The struggle of class against class is a what struggle? (5.00 / 1)

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.

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by: mbayrob @ Thu May 28, 2009 at 23:25:59 PM UTC

The 2/3 change minimizes need for a constitutional convention (0.00 / 0)

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.

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by: califdems @ Fri May 29, 2009 at 00:57:23 AM UTC

Schwarzenegger will be at the Convention, too (0.00 / 0)

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.  

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by: djardin @ Fri May 29, 2009 at 01:38:43 AM UTC

the rule could be written (0.00 / 0)

to ban current or former state legislators or statewide elected officials. in fact, given the sentiment of the people right now, that might even be a plus.

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by: wu ming @ Fri May 29, 2009 at 08:13:35 AM UTC

[ Parent ]

I respectfully disagree (8.00 / 1)

This leads to the same problem that I have had with the various redistricting commission proposals.  Virtually anybody with practical experience in dealing with politics and government is barred from participating in efforts to reform the system.  Banning current state electeds is one thing, but I for one would prefer to see the likes of Willie Brown and Jim Brulte as part of the ConCon.

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by: SolanoVoter @ Fri May 29, 2009 at 13:19:26 PM UTC

[ Parent ]

Our Constitutional Convention (0.00 / 0)

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: http://InternetAlley.blogspot.com

The California Community Action Network is here:
http://thepot.meltingpotprojec...

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.

Paul Currier

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by: PaulCurrier @ Fri May 29, 2009 at 21:25:54 PM UTC

Chemerinsky on California's budget problem (0.00 / 0)

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.  

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by: Otis @ Mon Jun 01, 2009 at 19:51:41 PM UTC

Re: Erwin Chemerinsky on the Constitutional Convention (0.00 / 0)

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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by: pacificvs @ Thu Jun 11, 2009 at 22:40:10 PM UTC