The Coming Constitutional Crisis In California

From The Pacific Justice Institute and Alliance Defense Fund:

The Looming Constitutional Crisis -- By Kevin SniderCalifornia is teetering on the precipice of a constitutional crisis. Former bodybuilder, turned Governor, Arnold Schwarzenegger, along with former Governor, turned Attorney General, Jerry Brown, are putting their shoulders down to push California’s voters over the cliff. With them, the State’s republican form of government will fall.




As elected officials under Article V of the State Constitution, they are members of the executive branch of government. One of the burdens of holding these offices is that they are routinely named as defendants in lawsuits filed in state and federal courts against the State of California. Not surprisingly, they are both named as defendants in Perry v. Schwarzenegger, (Case No. 09-CV-2292 VRW). The court in Perry struck down Article I, section 7.5 of the California Constitution which simply defines marriage as follows: “Only marriage between a man and a woman is valid or recognized in California.”



As has been widely reported, there is a possibility that the defenders of Proposition 8 may not have legal standing to defend the constitutional amendment defining marriage. In a recent order, the trial court indicated that the only defendants that have standing to appeal are the Governor and Attorney General. That will be the first issue that the Ninth Circuit will take up in December.



In a curious decision, in a case for which there have been many, the trial court judge (Hon. Vaughn Walker) allowed the City and County of San Francisco to intervene yet denied intervention to Imperial County. The question must be asked, what happens if the Ninth Circuit and the U.S. Supreme Court determine that Prop 8 proponents (PROTECTMARRIAGE.COM) and Imperial County lack sufficient injury under Article III of the U.S. Constitution to have standing? The answer is that an amendment to the California Constitution will be erased without a meaningful review by the courts. The voters will have been disenfranchised.



California’s Constitution, like all states, has three branches of government -- executive, legislative and judicial. By defining marriage, the people of California served a legislative function by directly amending their own constitution. Under Article V of the Constitution, the Governor and Attorney General are a part of the executive branch and both have a duty to support and defend the State Constitution. Their oath of office requires them to do so “without mental reservation.” Unfortunately for the citizens of California, they are having second thoughts.



The duty to defend peacefully enacted laws is at its zenith when the voters have amended their own constitution. Should these elected members of the executive branch refuse to defend a constitutional amendment enacted in this manner, the Governor and the Attorney General will have seized an extraconstitutional power by creating what is tantamount to a constructive veto. This is particularly troubling in view of the Attorney General. He is setting a dictatorial precedent whereby he could simply refuse to defend a law in court for which he does not agree. He need only allow a default to be taken, or, as in Perry, refuse to file a notice of appeal with the Ninth Circuit. Even a Governor’s veto can be overridden by the legislature. But this newly created power by the Attorney General would make that office more powerful than the legislature, the governor, and the people. This is a disturbing proposition, one that cannot be squared with the California Constitution. Indeed, the powers that the Governor and Attorney General are apparently taking to themselves are nothing but pure hubris. Regrettably, the pages of history books are filled with leaders, with bigger than life personalities, who believe they were born to such entitlement.



Whether or not the citizens of California realize it, the social contract that the people have made to govern themselves with is being breached. We are witnessing what is essentially a coup. Although Governor Schwarzenegger and Attorney General Brown do not support a traditional definition for marriage, it is imperative that they recognize that nothing less than preservation of a republican form of government is at stake. If they still believe in the radical experiment which is democracy – that the people are wise enough to govern themselves – it is crucial that they take the simple procedural step of filing a notice of appeal so that a lawfully enacted amendment to the Constitution can be weighed in the scales of justice by the full judicial process. This is necessary to preserve the system and form of government which they vowed to support and defend. Otherwise, what will occur is a usurpation of power that is violative of the fundamental constitutional structure that California has in place. If not resisted, their legacy will be that of plunging the state into a constitutional crisis.



For the good of the State, the Governor and Attorney General must put aside their personal feelings and ambitions, demonstrate leadership, and act decisively to avert a constitutional crisis. Maintaining the integrity and viability of the republican form of government demands that the executive branch defend and support lawfully enacted amendments to the Constitution.



The people of California have peacefully cast their votes and amended their Constitution. They have a liberty interest in seeking to have laws that they have passed vindicated through substantive and full review by the judiciary.