Commiefornia and the Perils of Pure Populism

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One of the salutary features of federalism is that different states can govern themselves differently, making them, in the words of Supreme Court Justice Louis D. Brandeis, “laboratories” of democracy, free to “try novel social and economic experiments without risk to the rest of the country.” Examples of this abound. For example, Nebraska alone has a unicameral legislature. Some states have term limits; others do not. Some states do not levy a state income tax, while most do, and so forth.

State-level innovation also affects the mechanics of lawmaking. Texas, for instance, exalts democracy by making most government officials—including judges—subject to popular election. Tennessee’s approach is in the opposite direction, with the state attorney general uniquely being appointed (for an eight-year term) by the state supreme court, the members of which are in turn appointed by the governor.

Some states, such as California, have a populist tradition that embraces lawmaking by initiative and referendum. In the Golden State, citizens can propose, enact, and repeal laws—and even constitutional amendments—as ballot measures.

This kind of “direct democracy” makes it easier for voters to change the law, which promotes responsiveness to the people, but this fluidity also contributes to the passage of laws that are impermanent—as easily erased as the image on an Etch-A-SketchProposition 209 (also known as the California Civil Rights Initiative [CCRI]), the landmark anti-discrimination measure passed by the voters in 1996, is a case in point. Prop. 209, enacted in the Bakke era when racial preferences by state universities were permitted, but not required, amended California’s state constitution to prohibit the state from “discriminat[ing] against, or grant[ing] preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”

Prop. 209 inspired a similar initiative (known as Proposal 2) in Michigan, which voters adopted in 2006, and which was upheld by the US Supreme Court in 2014. Both Prop. 209 and Proposal 2 demand government neutrality on the basis of race and sex. Ironically, color blindness is very controversial among so-called civil rights groups, which long ago abandoned the non-discrimination principle of Brown v. Board of Education and the Civil Rights Act of 1964. Prop. 209, which anticipated the Supreme Court’s 2023 decision in Students for Fair Admissions v. Harvard, passed by a margin of 55 percent to 45 percent, and has withstood several attempts to overturn it (both politically and via litigation).

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In 2020, for example, California voters rejected a well-funded—to the tune of over $25 million!—effort to repeal Prop. 209, with a ballot measure known as Proposition 16, by an even greater margin (57 percent to 43 percent) than CCRI enjoyed in its original passage a quarter-century earlier. Remarkably, voters supported the preservation of Prop. 209 despite being outspent by Prop. 16 backers 14-to-1, and even though Prop. 16 was endorsed by the Golden State’s “two US Senators, many of its US Representatives, California’s governor, its attorney general, many state and local politicians, professional sports teams, labor unions, the ACLU, business elites, and major media outlets.” In other words, the wishes of California voters were emphatically clear: Maintain the ban on racial and sexual preferences.

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