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Why Prop. 187 Needs Judicial Review : The “voice of the people” may mandate the initiative, but constitutional principles form the rule of law. Recall efforts against local officials are politically naive.

<i> H. Eric Schockman of Sherman Oaks teaches political science at the University of Southern California</i>

Since the passage of Proposition 187, attacks have been launched against elected officials for raising questions about the constitutionality of the voter-approved measure.

One Valley activist recently accused the Los Angeles school board and City Council members of “playing hooky during Democracy 101" because they have not simply accepted the “voice of the people” and the “will of the majority” but have sought clarification of Proposition 187’s legality. There has been talk of recalling the official who supported a challenge.

Democracy 101? That is where we learned about federalism, judicial review and the Constitution--I thought.

The pro-187 activists criticizing the board and council with such vehemence are doing more than challenging the views of elected officials. They are attacking the very concept of judicial review.

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The proposition’s co-author, Barbara Coe, has said, “In an ideal world, when the people spoke, that would be end of the subject--it would be the law.” She is mistaken. The American system of government is not a pure democracy, but rather a republican form of government whose Constitution, with its Bill of Rights, is specifically designed to protect the rights of minorities from the untrammeled will of the majority.

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In Federalist Paper No. 10, John Madison wrote about the conditions before the adoption of the Constitution: “Complaints are heard . . . that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by superior force of an interested and overbearing majority.” He went on to explain that the proposed U.S. Constitution was based upon principles that would help check such democratic excesses.

In our passionate embrace of the initiative process, Californians must understand that initiatives, like statutes enacted by the Legislature, must be reconciled with the rule of law. Election mandates do not override basic constitutional principles. For example, a 1920 voter-approved initiative in California barring Japanese immigrants from owning property was struck down for violating the Constitution.

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It is true that for three administrations, the federal government has failed to enforce our immigration laws. We need not stand for the fact that California taxpayers have been burdened with increasing costs to serve people who are here without legal status. Because we do not have a federal initiative process, the authors of Proposition 187 used a state initiative to “send a message” to Washington.

But the current hostility to judicial review being expressed seems hypocritical, because the education provisions of Proposition 187 were written with the intent of bringing a legal challenge to the Supreme Court. In 1982 the Supreme Court found that a similar Texas law violated the Constitution. We should not be surprised that the initiative is now moving through the courts--it was inevitable.

School officials would have to break federal law to enforce Proposition 187, placing $628 million in federal funding at risk. To avoid breaking the law, the Los Angeles Unified School District must have a ruling from the courts. So does every other school district in California. Six hundred and fifty school boards have joined in this single lawsuit. If LAUSD did not take appropriate legal action to defend the interest of our schools, it would likely be sued by others.

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Meanwhile, we must be careful to not let the politicians in Washington off the hook while we pick fights with local officials.

Unfortunately, since the election, Proposition 187 supporters have done little to engage the new Congress on the issue of illegal immigration and Proposition 187. Issues like a middle-class tax cut have all but forced immigration policy off the congressional agenda.

Let’s allow the courts to do their job and focus our attention on demanding that the federal government relieve California of the burdens of illegal immigration.

It is simply politically stupid to launch “recall” initiatives against local school board or City Council members. For the sake of our schools and our children, we should let the process of judicial review take place and take aim at Washington and Sacramento.

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