Although the furor over Count My Vote seems to have subsided (at least for now), the battle over Utah’s nominating systems has raised some fascinating issues, one of which has especially piqued my interest.
Utah’s Constitution expressly guarantees the right of citizens to legislate via initiative and referendum, but “in the numbers, under the conditions, in the manner, and within the time provided by statute.” Here’s the full text of the provision, found in Article VI of the Utah Constitution (emphasis added):
(2) (a) (i) The legal voters of the State of Utah, in the numbers, under the conditions, in the manner, and within the time provided by statute, may:
(A) initiate any desired legislation and cause it to be submitted to the people for adoption upon a majority vote of those voting on the legislation, as provided by statute; or
(B) require any law passed by the Legislature, except those laws passed by a two-thirds vote of the members elected to each house of the Legislature, to be submitted to the voters of the State, as provided by statute, before the law may take effect.
The Constitution delegates to the legislature the setting of every condition that governs the exercise of the citizen legislative power. In other words, the Utah legislature defines the scope of the citizens’ constitutional right.
From what I can tell, the citizen right to legislate via initiative and referendum is uniformly a creature of constitutional amendment. Each of the 27 states that provide for citizen initiatives and/or referenda has the adopted the right in its Constitution.
But most states’ constitutions specify in detail the requirements for how the citizen legislative power will be exercised, including dates by which initiatives must be proposed or laws referred, the numerical and distributional requirements for signatures, and how a legislature may or may not respond to a citizen initiative — all things that Utah delegates exclusively to its legislature. In other states, as a result of the detailed, affirmative constitutional provisions, there is generally no need, and even little room, for legislative action on the subject of citizen legislation; the constitutional right of citizens to legislate via initiative and referenda is self-executing. Contrast that with Utah, where, without legislation, the Constitution would provide no guidance or mechanism whatsoever.
A number of states go so far as to specifically prevent the legislature from acting to amend or repeal a citizen enacted initiative . . . giving citizen legislation something akin to super-statute status, while others allow for legislative repeal, but only by a super-majority. A few states, such as Massachusetts, provide that the state legislature may, in response to a citizen initiative, pass an alternate law to place on the ballot. Both the initiative and the legislative alternative would then go before the people during the general election, who would vote for one or the other (this seems a particularly elegant solution to me). Again, Utah is the outlier — it’s constitution provides no guidance whatsoever regarding permissible legislative responses, leaving that to be fleshed out by the legislature via statute.
It’s important to note that the Utah Supreme Court has not embraced the idea of the legislature as to the sole authority over the citizen’s constitutional right to legislate. In Gallivan v. Walker, the Court reasoned that the constitutional reference to the legislature was more an instruction to the legislature to pass “enabling” legislation (i.e., because the initiative power was not self-executing based on the existence of the constitutional provision) rather than a right to run roughshod over constitutional rights, and stated that, if the legislature adopted procedures that “unduly burdened” the citizens rights to an legislate, the Court would step in and preclude their adoption (Gallivan itself involved the court striking down legislative procedures for initiative/referenda, but on equal protection grounds). See 2002 UT 89, ¶ 28.
But notwithstanding the Court’s reasoned analysis and efforts, even if Utah’s Constitution doesn’t surrender complete control over initiatives and referenda to the legislature, Utah’s provision gives the legislature’s statutory enactments a super-presumption of constitutionality, and forces a challenger to argue against statutes with no constitutional guidance.
And that’s unusual.
The idea the constitutional rights can be burdened or shaped by statutory enactments is familiar. After all, the Bill of Rights’ thundering declaration, “Congress shall make no law . . .,” has been consistently interpreted by the Supreme Court into a whimpering, uncertain, “Congress may make some laws . . . .”
But the idea that a constitutional right is largely subject to legislative whims seems backwards, and for good reason.
The whole purpose of a written constitution is to place some matters beyond the control of legislative majorities. A right conferred by a constitution but made subject to legislative discretion doesn’t seem like much of a right at all. Think if the Fourteenth Amendment to the Constitution had guaranteed the right of equal protection . . . subject to the conditions and in the manner that Congress may provide by statute.
What the right hand giveth, the left hand taketh away . . . .
Constitutional rights don’t need protection from minorities (at least politically speaking). They need protection from majorities. So to let a legislative majority define the scope of a constitutional right seems rather unproductive.
Yet, that is, by and large, what Utah’s Constitution does when it comes to citizen legislation.
Which got me thinking: Is this done anywhere else?
Well, I suspect it is, but I’m not sure where.
The closest analogue that came to my mind is federal court jurisdiction. The Constitution allows Congress to define the jurisdiction of the federal courts by virtue of the combined operation of a series of provisions, including the right to define the appellate jurisdiction of the Supreme Court (subject to a few constitutional exceptions) and to create and vest authority in “inferior” federal courts (think district courts and the federal circuit courts of appeal). But to what extent could Congress use its power to define federal court jurisdiction to remove jurisdiction over subjects from the federal courts? Is there a point beyond which such efforts would run afoul of the structure of the Constitution?
Ultimately, I (and most others) suspect that there is. However, the answer’s uncertain given the constitutional reality. And these are the kind of questions you have to start asking yourself when you provide a legislative body with significant authority over the content of a constitutional right. In the context of jurisdiction stripping, the deference to Congress is understandable — the alternatives are to either conceive of every possible jurisdictional scenario and put it in the Constitution (originally or by amendment) or to simply allow the federal courts to be the arbiter of their own jurisdiction.
The constitutional deference to the legislative branch is much less understandable (in my view, anyway) in the context of citizen legislation. The whole purpose of citizen legislation is to circumvent the normal representative filter of the legislature when it’s not being responsive to the will of the people. Now, while no one (at least no one in their right mind) would want to be California — where the favorable climate for initiatives and referenda has resulting in citizen legislation run amok — it’s my opinion that Utah is a bit out of balance in the opposite direction.