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Newsnotes from our "little laboratories of experimentation"

By Jack M. Balkin

Constitutional design buffs should certainly find much of interest in today's newspapers, especially with regard to the oft-argued role of American states as "little laboratories of experimentation." One state is offering us an example of American-style "constitutional dictatorship," while another demonstrates in spades the ravages of a dysfunctional constitution.

First, on "constitutional dictatorship," there is, somewhat surprisingly, Minnesota, where Gov. Tim Pawlenty, a favorite of the Repblican right wing (assuming there is anything else than a right wing in the GOP these days) is apparently going to use all of his powers under the Minnesota have exercised such powers, but Pawlenty's exercise in unilateral government seems to be of a different magnitude. Perhaps we should view Minnesota as having the equivalent of a Weimar Constitution Article 48, the "emergency powers clause" that allowed the president to govern by fiat. Throughout the 1920s, it was invoked more than 200 times to respond to the economic crisis. Pawlenty is sounding the same theme, as he prepares to slash spending on all sorts of public services. The fact that this will increase his attractiveness to the Republican Right, for the 2012 presidential race that has already begun, is, of course, an added benefit, since one doubts that he is banking on a political future within Minnesota itself (which didn't give him a majority at the last election; he was elected, as was Gov. Rick Perry of Texas, only because of the presence of third-party candidates). One might also look forward to whether he will refuse to certify Al Franken's election to the Senate even after the Minnesota Supreme Court, like all other Minnesota courts, says that he has won. Whoever thought that Minnesota would be the leading example of a 21st-century version of "constitutional dictatorship" among the American states?

Then there is California. The headline of today's story in the New York Times is "California, a Broke State, Reels as Voters Rebuff Leaders," detailing the refusal of the small minority of California voters who turned out to support a variety of last-ditch budget measures. Consider, though, the lead paragraphs of the story:

Direct democracy has once again upended California ? enough so that the state may finally consider another way by overhauling its Constitution for the first time in 130 years.

Gov. Arnold Schwarzenegger returned home from a White House visit on Wednesday to find the state dangerously broke, his constituents defiant after a special election on Tuesday and calls for a constitutional convention ? six months ago little more than a wonkish whisper ? a cacophony.

As the notion of California as ungovernable grows stronger than ever, Mr. Schwarzenegger, a Republican, has expressed support for a convention to address such things as the state?s arcane budget requirements and its process for proliferate ballot initiatives, both of which necessitated Tuesday?s statewide vote on budget matters approved months ago by state lawmakers.

California has been a "laboratory of experimentation" in all sorts of ways, most notably, probably, in the frequency of the use of the direct initiative and referendum. But it also, notably, has a two-thirds requirement to pass a budget, which has been fatal in the present polarized polity. What I, of course, find especially interesting is that more-and-more people realize tht the California constitution is seriusly dysfunctional and are willing to call for a constitutional convention. There appears to be increasingly little "veneration" for the 1879 constitution. Contrast this with our dysfunctional national Constitution, where not even policy wonks are willing to connect any dots and whisper about the possibility of assessing our 1787 Constitution. What will it take for the American citizenry to "reel" and consider the possibilities that even charismatic leaders (like Arnold Schwarzenegger?) cannot overcome a political system that is dangerously tilted toward stasis (save, of course, for Schmittian exercises of decisionmaking by the Federal Reserve Board)?

Full post as published by Balkinization on May 21, 2009 (boomark / email).

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