Thursday, October 14, 2010

Democratic Theory and Prop 19

I'm decidedly undecided on whether I would vote for Prop 19 if I had the chance, which is just as well because I'm not a resident of California. I've seen a lot of the debate over its passage, as California is a fairly technology-oriented state, and much of the conversation spills over onto blogs.

There are certainly some spurious arguments, such as the typical prohibitionist canards that legalizing marijuana would increase the number of users or create more intoxicated drivers or lower economic productivity in the state. The oddest argument against Proposition 19 that I have seen recently is ridiculed pretty well in this blog comment:
So, Rick, in your opinion, is Prop 19 terminally flawed? Do the opportunities that the loopholes create for government to tighten controls make this initiative something that should be voted down?

You’re right, there are many examples where the INTENT of a new law/ regulation is about 180 degrees from the RESULT.

Should we wait for an initiative which has no ambiguities in the language? Or, in your opinion, should we be voting “YES” and then try to plug the holes in the bucket?
Essentially, many pro-marijuana advocates are saying that the vagueness in proposition 19 is a flaw. Would-be-proponents decry the failure of the ballot initiative to include a state-wide tax even while its supporters claim that Prop 19 will bring in additional tax revenue on top of decreasing the absurd amount that California spends on incarceration (which incidentally tops education spending). They complain that the patchwork of regulations which would result from local controls and prohibitions (which are allowed in Prop 19) would produce uncertainty.

Inherent in these complaints is the fear that the legislature, as "Carmen" attributes to "Rick", the legislature and local authorities will scuttle whatever progress is enacted via the ballot box. The legislature doesn't have the collective courage to pass a legalization measure, despite the personal views of a majority of the members. Tom Ammiano, who introduced such a bill clearly thinks that this is the case. On the one hand, this collective cowardice is unlikely to produce an active attempt to scuttle the bill, but it is also unlikely that the legislature will take steps to make the law more reasonable.

But people who want a more specific proposition are mistaking a feature for a bug. California's constitutional order is such that any ballot initiative cannot be overruled by the legislature. Unless the initiative specifically allows the legislature to implement provisions through further law, the legislature cannot amend the ballot proposition in any way. Ballot initiative can only be changed via a future ballot initiative. Laws can only be changed when there are statewide elections and a majority of the electorate agrees on a specific fix. This is a terribly inefficient way to make law. Competing factions cannot compromise on the text to remove noxious provisions or insert additional plans.

That's what a legislature does. The people may be equipped to do it, but they certainly don't have the time. People should certainly make broad policy decisions, but they should certainly invite the legislature to do the fine-point rule making. Ballot Initiatives are a separate class of law from legislative statutes. They are very costly to change. People who decry vagueness in them should consider the immutability of these acts.

The people who write the ballot initiatives want their language to be set in stone. But the authors are a very small group of the supporters. There will never be a ballot initiative which perfectly captures the policy preferences of the electorate, or even all of its supporters. The choice in elections is always between two distinct possibilities. Either voters think that Prop 19 is better than state marijuana prohibition, or they think it is worse. This is the only information that courts will have in the future in interpreting the law. Allowing the legislature to rough in, update, and extend the ballot initiative limits the courts' discretion in interpreting Prop 19 in the future. Normally the legislature acts upon its on prerogative, but in statutes that are enacted within the purview of a ballot initiative, they are extending the will of the people. Courts interpreting these statutes then have two authoritative texts: the legislative act and the ballot initiative. The ballot initiative imbues further statutes with explicit support for some purpose, some intent, and some values. While these sources are a lot fuzzier than legislative history as recorded in legislative reports, they are certainly as declarative of the will of the voters. In any event, courts will have a firmer basis for supporting laws spawned from prop 19 than they would had the same ends been enacted through the legislature.

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