Impromptu Opinion at Forum : Lucas Sees No Reason to Overturn Prop. 65

California Supreme Court Chief Justice Malcolm M. Lucas said Friday that he sees no “constitutional deprivation” of rights which could require overturning Proposition 65, a measure passed overwhelmingly by voters last year to establish English as the state’s official language.

The impromptu opinion was offered during the Claremont Graduate School’s sixth annual President’s Forum, in answer to a naturalized citizen’s question about whether the measure violates equal protection provisions of the U.S. Constitution. The questioner said he considered the initiative extremely unfair.

Lucas, who joined other panelists in discussing “Liberty, Equality, and the Constitution” in observance of the document’s bicentennial, responded:

“It is primarily a political question. We haven’t seen a political challenge to it, and in California we see political challenges or constitutional challenges to everything. But I would think there is not a constitutional deprivation. Whether it (the initiative) is right or not, I can agree with you, but is there a constitutional problem? I don’t see it.”

Fellow panelist Leonard W. Levy, the school’s Pulitzer Prize-winning historian and editor of the Encyclopedia of the American Constitution, quickly grabbed the microphone to explain humorously but correctly to the 250 observers that judges are not allowed to comment on any potential issue they might be called upon to decide.

Unabashed, Lucas used the chastisement to sidestep a thornier question about any “California opinion” on recent U.S. Supreme Court rulings overriding individuals’ rights in favor of giving police greater latitude in their investigations.

“I am indebted to Leonard (Levy) for reminding me of my duty not to comment on matters that may come before us,” Lucas said, evoking laughter. “I hope that is not considered a pure cop-out. It is very close.”

During his brief prepared remarks, Lucas said state courts complement federal courts in implementing and even interpreting the U.S. Constitution.

All state court opinions, as well as local and state laws, must adhere to the federal Constitution, Lucas noted, but judgment on that adherence frequently falls to state court judges.

“Constitutional interpretation is far from a precise undertaking,” Lucas said, listing several key cases decided by the California high court on 4-3 votes.

The Constitution is not rigid and exact like chemistry or physics, Lucas said, but all courts agree on its sound framework, which provides them a basis for most decisions.

Correcting ‘Mistakes’

Lucas was joined by Levy, who said affirmative-action programs must be pursued to correct “past mistakes of society” which evolved despite the “color-blind, religion-blind, sex-blind and ethnic-blind Constitution,” and by Marian Wright Edelman, founder of Children’s Defense Fund, who said the legal and political systems had failed to provide protection for growing numbers of poor, uneducated children.

Also addressing the forum were former U.S. Atty. Gen. Edward Levi, Oxford University law professor Ronald Dworkin, and Claremont Graduate School philosophy chairman Alfred R. Louch, who said the Constitution is like a house that had been declared a historical monument, with an unchangeable structure but still adaptable to varying tastes of generations of occupants.

Lucas, Levi, Edelman and Dworkin will join Watergate prosecutor Archibald Cox in receiving honorary doctor of laws degrees at the graduate school’s commencement today.