Professor Bainbridge...on law, politics, religion, culture & food

Barack Obama owes his victory to the Pittsburgh Steelers

Here’s why:

“If the Redskins win their last home game before the election, the party that occupies the White House continues to hold it; if the Redskins lose that last home game, the challenging party’s candidate unseats the incumbent president.” ...

In fact, in a string of 17 consecutive “predictions” going back to the days of the Boston Redskins in 1936, a Redskins victory in the last home game before the election has presaged a victory by the incumbent party.

So I knew it was over when Jason Campbell through that last interception.

PS: I understand that correlation does not imply causation. My tongue is firmly in cheek.

Proposition 8 Passes: What Now?

Proposition 8 passed 52-48. The California Constitution thus now includes the following language:

Only marriage between a man and a woman is valid or recognized in California.

One can’t help but wonder whether the surge of new voters brought into the system by Barack Obama’s historic canidacy helped Prop 8 pass. Radley Balko observes:

… the Proposition 8 ban on gay marriage actually failed among white voters, 51-49.  It was the 70 percent support from black voters that put the measure over the top.

I think the Yes on 8 campaign also made very effective use of concerns over parental and church autonomy, even though those concerns were largely overstated. Yes on 8 also made very effective use of Gavin Newsom’s “like it or not” crack:

There will inevitably be a court challenge and that’s when things will get interesting.

Issue # 1: Did Prop 8 amend or revise the Constitution? There are two modes of changing the California state constitution. First, there is an amendment. An amendment can be effected in either of two ways: (1) passage of an amendment by a 2/3 vote of each house of the state legislature or (2) by ballot initiative, as was the case with Prop 8. Second, there is a revision. In order to revise the California state constitution, the change must be approved by a 2/3 vote of each house of the legislature and thereafter approved by public referendum via a legislatively-initiated ballot proposition.

Prop 8 opponents made a pre-election challenge of the proposition’s placement on the ballot on precisely these grounds; namely, that Prop 8 is a revision rather than amendment and therefore can only be effected by the revision process, which required legislative initiation. The California supreme court simply decided not to decide that issue. Now it presumably will have to face it. [Update from the LA Times:

Lawyers for same-sex couples said they will argue that the anti-gay-marriage measure was an illegal constitutional revision—not a more limited amendment, as backers said. The legal action contends that Proposition 8 actually revises the state Constitution by altering such fundamental tenets as equal-protection guarantees. A measure to revise the state Constitution can be placed before voters only by the Legislature.

Opponents of gay marriage expressed outrage at the move. “This is exactly the type of behavior that brought us to this position to begin with,” said Proposition 8 co-chair Frank Schubert. “The people voted eight years ago overwhelmingly in favor of traditional marriage and they seem to be saying in pretty strong terms again . . . that they favor traditional marriage, and yet this is not accepted by gay-rights activists.”

In Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization, 22 Cal.3d 208, 149 Cal.Rptr. 239 (Cal 1978), the court confirmed that “a revision may not be achieved through the initiative process.” Id. at 221. The court went on to explain that:

While the Constitution itself does not specifically distinguish between revision and amendment, we are considerably aided in an evaluation of petitioners’ primary argument by our earlier analysis of the issue in McFadden v. Jordan (1948) 32 Cal.2d 330 [196 P.2d 787] (cert den., 336 U.S. 918 [93 L.Ed. 1080, 69 S.Ct. 640]). In McFadden, we struck down an initiative measure which would have added 21,000 words to our then existing 55,000-word Constitution. We held that the initiative was ‘revisory rather than amendatory in nature,‘ because of the ‘far reaching and multifarious substance of the measure ...‘ (p. 332) which dealt with such varied and diverse subjects as retirement pensions, gambling, taxes, oleomargarine, healing arts, civic centers, senate reapportionment, fish and game, and surface mining. We noted that the proposal would have repealed or substantially altered at least 15 of the 25 articles which then comprised the Constitution. (P. 345.)

We held in McFadden that the measure under scrutiny therein was clearly a revision, both because of its varied aspects and because of the ‘substantial curtail[ment]‘ of governmental functions which it would cause. (Pp. 345-346.) For example, one provision would have created a state pension commission with comprehensive governmental powers to be exercised by five named commissioners. We concluded that ‘The delegation of far reaching and mixed powers to the commission, largely, if not almost entirely in effect, unchecked, places such commission substantially beyond the system of checks and balances which heretofore has characterized our governmental plan.‘ (P. 348.)

In addition, although the subject of taxation was only one of many covered by the McFadden initiative, nevertheless we observe that the proposed taxation amendment would have accomplished, by itself, a far more substantial change in the state’s taxation scheme than that effected by Proposition 13. The far reaching nature of the McFadden measure is demonstrated by the fact that it not only would have destroyed the power of cities and counties to tax and regulate their own budgets and expenditures (p. 344), but also the 2 percent gross receipts tax proposed therein was to have been the only tax permitted to any agency on real or personal property, or on any business enterprises. (Pp. 336-337.)

Finally, we stressed in McFadden that ‘The proposal is offered as a single amendment but it obviously is multifarious. It does not give the people an opportunity to express approval or disapproval severally as to each major change suggested; rather does it, apparently, have the purpose of aggregating for the measure the favorable votes from electors of many suasions who, wanting strongly enough any one or more propositions offered, might grasp at that which they want, tacitly accepting the remainder. Minorities favoring each proposition severally might, thus aggregated, adopt all. Such an appeal might well be proper in voting on a revised constitution, proposed under the safeguards provided for such a procedure, but it goes beyond the legitimate scope of a single amendatory article.‘ (P. 346, italics in original.)

Taken together our Livermore and McFadden decisions mandate that our analysis in determining whether a particular constitutional enactment is a revision or an amendment must be both quantitative and qualitative in nature. For example, an enactment which is so extensive in its provisions as to change directly the ‘substantial entirety‘ of the Constitution by the deletion or alteration of numerous existing provisions may well constitute a revision thereof. However, even a relatively simple enactment may accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision also. In illustration, the parties herein appear to agree that an enactment which purported to vest all judicial power in the Legislature would amount to a revision without regard either to the length or complexity of the measure or the number of existing articles or sections affected by such change.

The strongest argument for claiming that Prop 8 is a revision is that it makes a fundamental change in the state constitutional gurantee of equal protection, depriving a suspect class (note that that’s a legal term of art) of rights they possessed under the constitution (albeit by a 4-3 judicial interpretation thereof). Accordingly, it wil be argued, Prop 8 is “a relatively simple enactment” that accomplishes “such far reaching changes in the nature of our basic governmental plan as to amount to a revision .... “

Having said that, however, Prop 8 doesn’t add anything near 21,000 words to the state constitution. It affects 1 section of 1 article, not “at least 15.” It doesn’t create a new state agency outside the scope of ordinary checks and balances. It gave the people an up or down vote on a single issue. And it falls far short of effecting such a fundamental change as reallocating the judicial role to the legislature.

It’ll be very interesting to see how the California supreme court rules. Legally, Prop 8 looks like an amendment. Politically, will the court have the balls (if you’ll pardon the expression) to strike down the voice of the people?

Issue # 2: Retroactivity. As Prop 8 opponent and constitutional scholar David Cruz observes:

What is the fate in California of existing marriages?  Does Proposition 8 operate prospectively only, effectively “grandfathering” in the estimated 16,000 same-sex couples who married between mid-June and the passage of Prop 8 last night?  Even if it bars, California from continuing to treat those couples as married, it probably (though this remains to be worked out) would not stop other states from recognizing the pre-Prop 8 marriages.  States such as Massachusetts, which allows same-sex couples to marry civilly, or New York, which doesn’t itself marry same-sex couples but recognizes their validly entered marriages from other jurisdictions, are likely free to continue recognizing these marriages.  I have sometimes described the quasi-retroactive view of Prop 8 as akin to a forced divorce, but it is probably more like a legal blind spot on the part of California; these marriages were validly entered, the parties have not divorced, so even though California will no longer treat them as marriages, others states most likely will be able to.

This is going to be a real mess and, in my view, was a strong argument against Prop 8 as it was worded. The failure to deal with the retroactivity issue exposes those 16,000 couples to serious problems.

Update: My friend and colleague Eugene Volokh comments on the amendment versus revision issue, with analysis of additional California case law, and concludes:

The proposal to allow only same-sex marriages is likely to be found to be only an amendment, not a revision. Raven struck down an initiative that would bar the state courts from interpreting the state constitution in a more defendant-friendly way than the federal constitution is interpreted, as to a wide range of constitutional provisions. (Generally speaking, state prosecutions must comply with both the state constitution’s bill of rights and the federal bill of rights, and while states often interpret state constitutional rights the same way as the U.S. Supreme Court has interpreted the analogous federal right, they also have the power to interpret the state rights more broadly.)

The court stressed that the proposal made “such far reaching changes in the nature of our basic governmental plan as to amount to a revision,” because it “involved a broad attack on state court authority to exercise independent judgment in construing a wide spectrum of important rights under the state Constitution,” as opposed to only dealing with one specific right....

He also notes that:

… the two cases that I’ve found in other states that dealt with the same question have likewise concluded that an opposite-sex-only marriage initiative was an amendment, not a revision: Bess v. Ulmer (Alaska Supreme Court, 1999), and Martinez v. Kulongoski (Oregon Court of Appeals, 2008). Bess, in particular, expressly applied California precedents (though with a minor change that doesn’t seem relevant here), and concluded that the opposite-sex-only marriage initiative was an amendment, not a revision: “Few sections of the Constitution are directly affected, and nothing in the proposal will ‘necessarily or inevitably alter the basic governmental framework’ of the Constitution.”

It’s an amendment.

And so the American people have spoken

But what have they wrought?

This is a tectonic-plate election, one of those once-in-a-generation times where people not only define change, but define a new relationship with government,” said New York Sen. Charles Schumer, the lead campaign strategist for Senate Democrats. He added that voters want a government that is “more activist, more involved” in the economy and their lives. “>“This is a tectonic-plate election, one of those once-in-a-generation times where people not only define change, but define a new relationship with government,” said New York Sen. Charles Schumer, the lead campaign strategist for Senate Democrats. He added that voters want a government that is “more activist, more involved” in the economy and their lives. (Link)

The worst case scenario is that the American people--knowingly or not--have given essentially unchecked power to a political party whose leadership’s agenda, if enacted in large measure, would essentially transform American democratic capitalism into Western European-style social democracy. Higher taxes, an expansion of the welfare and nanny states, greater government regulation of business, bailouts for politically powerful businesses with strings attached, elimination of secret ballots in unionization votes, elimination of weapon system programs, expansion of abortion rights, and the left-liberal agenda in the kulturkampf.

I wonder if the American people realized yesterday that they could very well be voting to become France.

Election night open thread

I’m having a rough week. The Washington Redskins lost. Both of my head to head fantasy football teams lost. And to think the week’s about to get worse. Much worse.

Feel free to gloat or mourn as your preferences dictate. As for me, well, you know my plans.

How to react

Bill Kristol:

Barack Obama will probably win the 2008 presidential election. If he does, we conservatives will greet the news with our usual resolute stoicism or cheerful fatalism. Being conservative means never being too surprised by disappointment.

Piffle. I plan on throwing a major hissy fit, followed by a bender of historic proportions.

Drawing Correct Conclusions

Ambrose Evans-Pritchard:

It is not just that the Democrats will win a crushing victory in both houses of Congress, perhaps reaching the 60-seat Senate threshold that lets them steam-roll legislation. It is also that the incoming class of 2008 is of a new creed. Many no longer believe – or actively reject – the free trade and free market catechisms. ...

No matter that statist policies were responsible for this global crisis in the first place. It was Western governments that set interest rates too low for too long, encouraging us all to abuse credit.

It was Eastern governments that held down their currencies to pursue mercantilist trade advantage, thereby accumulating vast foreign reserves that had to be recycled. Hence the bond bubble. This is the deformed creature known as Bretton Woods II. Protectionist Democrats are right to complain that the game is rigged. Free trade? Laugh on.

But at this point I have given up hoping that we will draw the right conclusions from this crisis. The universal verdict is that capitalism has run amok.

The sole consolation is that it could be worse:

I for one will take the enlightened “socialism” of Barack Obama any day over the Hegelian broth nearing the boil in Europe.

me too, but it’s a pity those are the only choices on offer.

My Voting Endorsements

Quotations are from the Reason voter guide.

President/Vice President:  McCain/Palin

US House of Representatives 28th District: No vote

State Assembly 42nd District: Steven Sion

Prop 1A: Train Bond: No.

The Howard Jarvis Taxpayers Association and other taxpayer watchdog groups oppose the measure, arguing that the project will likely go well over budget and may never even be completed. The environmental advocacy group, California High Speed Rail Land Impacts, complains that the high-speed rail system would have detrimental effects on many of California’s parks and wildlife refuges.

Prop 2: Farm Animals. No.

The humane treatment of farm animals is important and admirable. However, laws and regulations are not the best way to advance this goal, and they come with unintended consequences. Consumer preferences have already created significant specialty markets for more humane animal products. The proposed regulations won’t improve consumer choices, they’ll merely drive costs up for all products as production shifts out of state. This is a lose-lose scenario, both for the current consumers of specialty products like cage-free eggs, and for those who rely on conventional products to feed their families.

Prop 3: Hospital Bond. No. The state budget is too far in the red. Likewise, almost half of the proceeds of the last children’s hospital bond (Prop 61 from 2004) remain unspent.

Prop 4: Parental Notification. Yes.

Prop 5: Nonviolent Offenders. Yes.

Proposition 5 aims to move non-violent drug offenders from incarceration to substance-abuse treatment and rehabilitation and to reduce some penalties for possession of small amounts of marijuana.

Prop 6. Criminal Penalties. No.

The offenses covered by Proposition 6 are already illegal and are being enforced as such. California spends a stunning 8.6 percent of its general fund budget on prisons, the fifth highest rate in the country. It has 6.88 people in prison for every 1,000 adults. And 12.8 percent of the state employees work in corrections, the 11th highest in the nation. California faces many serious problems. But putting too few of its citizens behind bars is not one of them.

Prop 7. Renewable Energy. No.

The opposition coalition includes the state’s major political parties and utility providers and environmental groups, including Natural Resources Defense Council, Environmental Defense, Union of Concerned Scientists and California League of Conservation Voters. These groups argue that Proposition 7 will actually hurt the renewable energy industry’s growth.

Prop 8. Gay Marriage. Undecided. Probably yes.

Prop 9. Victim’s rights. Undecided. Probably yes.

Prop 10. Energy bonds. No. It’s a giveaway for Boone Pickens, and yet another financial burden at a time of rampant state budget woes.

Prop 11. Redistricting. Yes.

As long as political boundaries are subjectively drawn in the redistricting process, there will always be the potential for abuse—whether the boundaries are drawn by the legislature or, as this proposition would require, by a seemingly independent entity. That said, the concept of an independent commission to draw boundaries for state lawmakers is likely to reduce the odds of abuse and holds the promise of increasing competitive pressures for elected office. This could result in a more dynamic and responsive government. Furthermore, by protecting “communities of interest” it would also end the practice of gerrymandering obscure district boundaries that confuse voters and undermine the relationship between the public and their elected representatives. At a bare minimum, it would introduce an element of objectivity to political boundaries that is painfully absent today.

Prop 12. Veterans bonds. No. It’s a good program, but in times of financial crisis, lots of good programs have to go unfunded. Besides which, this sort of budgeting by resolution is one of the reasons California is in such budgetary trouble.

Prop R. Sales tax increase to fund road and rail projects. No. You don’t raise taxes in a recession.

Prop J. Community College bonds. No. More debt in a downturn? No thanks.

Prop Q. School bonds. No. Ditto.

Prop A. Property tax increase to fund anti-gang programs. No. No tax increases.

Prop B. Low income housing. Yes.

How bad will it get?

Want a real downer of an outlook? Read this.

I think most people would agree that this economy is definitely in a recession. The question then becomes: How long will this last? Conventional wisdom, publicly espoused by a number of market watchers and legal consultants, is that: “The recession will be intense, but short. Everyone wants to get back to normal. Short term, the backlog of real estate will be sold as owners accept losses; banks will end the credit crunch; layoffs will make companies more efficient.”

I only wish!

Unlike past experiences, this downturn isn’t being caused by a downward spiral in a few isolated industries. It started with the burst of a protracted housing bubble and then metastasized into a full-blown credit crunch, eventually destabilizing the entire financial system. Back on August 8th, I predicted in my blog that “for the next five years, every time you think it’s safe to get up and dust yourself off from this downturn, every time you feel like you’ve endured the worst of it, another piece of news is going to come along to freshly bludgeon you. This time the economic slowdown is going to be a lot different and, in many ways, a hell of a lot tougher.”

While usually the unrelenting optimist, I must admit that I am witnessing a confluence of a dozen factors that, when combined, cause me to be extremely concerned for our economic well-being. Here is a summary of some of the danger signs that I’ve been tracking, together with an exercise worth conducting within your firm.