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Steve Sack editorial cartoon for Jan. 29, 2012. Topic: Minnesota GOP's push for various constitutional amendments.

Steve Sack, Star Tribune

Legislating by constitution is hazardous

  • Article by: JACK DITMORE and ARVONNE FRASER
  • January 29, 2012 - 6:27 PM

With one constitutional amendment already on the 2012 ballot and some two dozen more on the desks of legislators, it's time to consider the risks of legislators abandoning their role and making voters lawmakers.

To be sure, constitutions -- state or federal -- are living documents, subject to amendment in an evolving world. But legislators need to be selective, referring to voters only issues that can't be resolved through the lawmaking powers the Constitution already provides them.

Constitutions are statements of the principles of government; they should not become a list of laws.

Abolishing the office of lieutenant governor or lengthening terms of elected officials would require a constitutional amendment. Requiring people to present photo IDs in order to vote, however, could be accomplished by ordinary legislation.

The backers of the voter ID amendment in Minnesota recognize this, saying that the constitutional amendment option would be pursued if Gov. Mark Dayton vetoed a bill to require photo IDs.

Most constitutional amendments being proposed in Minnesota for 2012 are substitutes for legislative action.

Submitting policy issues to the voters in a general election has seductive appeal. It is a way for the Legislature to bypass a governor's veto by a simple majority of its members.

But in choosing to deploy this tactic, the Legislature is allowing its power to be usurped. Called "direct legislation," the process moves a state down a road filled with deep potholes, as experience in other states has demonstrated.

Since the first statewide initiative appeared on a ballot in Oregon in 1904, research has highlighted its myriad problems. In "Direct Legislation," a seminal work on the subject, political scientist David Magleby noted that such proposals presented to the electorate are often biased and that citizens are frequently not sufficiently informed about the issues they are asked to vote on.

Other researchers point to questions of equity and process. Direct legislation not only allows a majority to determine the scope and content of minority rights, it also does not allow for modification or compromise as new information emerges.

As the Economist observed in an article on California where direct legislation has become an industry, the state legislature frequently cannot function because "ballot initiatives have preempted it."

Citizens assume the role of lawmakers, but without the constraints, incentives and serious consideration that temper the actions of elected representatives.

In Oregon, criticism comes from both sides of the aisle. Gov. John Kitzhaber, a Democrat, has argued that the way citizen initiatives are being used to amend the constitution "is very detrimental. It reduces complex issues to sound bites and the question of who has the most money."

Former Republican Attorney General David Frohnmayer has pointed out that "initiative battles totally overshadow legislative elections." Direct legislation dealing with spending and revenue "usurp the role of the legislature and governor in managing the ledger of state government."

Even more fundamentally, the tactic of presenting major public-policy issues to a referendum when they could be handled by legislation is a distraction from what is really necessary: making representative democracy work.

We must resist a focus on the tactics that circumvent the principles on which a government of laws has been built. When our country was founded, the Constitutional Convention developed the path to government that derives its powers from "the consent of the governed."

The choice was a balance of powers that, in the words of James Madison, mitigates "the superior force of an interested and overbearing majority."

In the Federalist Papers, Madison warned: "There are particular moments in public affairs when the people, stimulated by some irregular passion or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn."

The Legislature should recall that when proposing constitutional amendments.

In other words, messing with a constitution is dangerous. Constitutional amendments can have unintended consequences, as most notoriously demonstrated in California's experience under Proposition 13, which capped real-estate values for tax purposes and required a two-thirds vote for increasing taxes.

Constitutional amendments should not be political tactics to avoid the checks and balances of a healthy representative democracy.

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Jack Ditmore, former deputy commissioner of the Minnesota State Planning Agency, is a senior policy fellow at Growth & Justice. Arvonne Fraser is a senior fellow emerita, Humphrey Institute of Public Affairs. The opinions expressed here are their own.

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