Constitution, Not the Public, Is the Measure of Legality

“Majority rules!” shouted the crowd--that’s what the founding fathers wanted. . . . Such was the protest that arose this week among backers of the 1990 state term limits law when it was overturned by a federal judge.

Yes, the majority does rule--up to a point, as columnist George Will once noted. That point is reached when the wish of the people comes into conflict with the U.S. Constitution. And that, according to the new ruling by U.S. District Judge Claudia Wilkin, is the condition posed by California term limits. Wilkin said the law ran counter to the 1st and 14th amendments.

Indeed, Proposition 140 contained a fatal flaw, as citizen-written ballot measures often do. It was the measure’s lifetime ban against legislators running after they had served their allowed time in the Senate or Assembly. This prohibition, Wilkin wrote, denied a segment of the people their right to vote for the candidates of their choice and to exercise their right of political association.

The ruling has official Sacramento in a tizzy. Will it survive appeal? Will term limits be in effect for the 1998 elections? Can a legislator who is nearing the term limit seek reelection?

Although Secretary of State Bill Jones says the ruling will be appealed, many in Sacramento believe the decision is solid enough to withstand challenge in the U.S. Court of Appeals and the U.S. Supreme Court. But that process often takes months or even years.

One option, which assumes the public will demand that term limits be reinstated, is for the Legislature to pass a proposed new state constitutional amendment containing somewhat less restrictive limits. The 1990 law holds legislators to three two-year terms in the 80-member Assembly and two four-year terms in the 40-member Senate. There is merit to some liberalization of the limits, especially in the Assembly. The six-year limit has put the Assembly into a constant turnover that does not serve the people well.

Gov. Pete Wilson and fellow Republicans seem cool to an instant resuscitation of limits, possibly hoping to buy time for a tough new citizen initiative to qualify for the ballot and to keep the Democrats in turmoil. Democrats have the most to gain if a new law is imposed quickly. More of them face being termed out next year under the old law, which stays in effect during appeals. With a new law, all members elected in 1998 would have the full allotment of service ahead of them.

In the meantime, Proposition 140 backers are incensed that a single federal judge could overturn the electoral will of the 4 million Californians who voted for the proposition, which was approved 52% to 48%. One Republican called this week’s decision an “outrageous judicial error.” Another said it was a slap in the face of the nation’s fathers.

In fact, Wilkin’s decision is steeped in constitutional history. Yes, the founders supported majority rule, but they also were deeply concerned about protecting the rights of the minority, or as Alexis de Toqueville put it, controlling the passions of the crowd. Judge Wilkin wrote: “This court does not lightly overrule the political judgment of the California electorate. However, it is the singular duty of a federal court to determine when political judgment must give way to constitutional principle.”

In this instance, the judge properly came down on the side of constitutional principle.