A Federal Judge Saves Us From Democracy

Abraham Lincoln once criticized an opponent’s argument as being “as thin as soup made by boiling the shadow of a pigeon that had been starved to death.” What an apt description for federal Judge Stephen Reinhardt’s legal analysis in overturning California’s legislative term limits, a decision that may be reconsidered by an 11-judge panel of the federal 9th Circuit Court of Appeals. The original decision was handed down by a three-judge panel of the court.

In 1991, after careful deliberation, the California Supreme Court upheld the law as constitutional and found that the average voter would have known that Proposition 140 imposed lifetime term limits. Nevertheless, in an unrivaled show of judicial arrogance, Reinhardt declared that California voters simply could not have understood what they were voting for. Maybe he believes that only federal judges should be permitted to vote on initiatives in California.

Aside from this obvious disdain of the voting public, how could a federal judge disregard the factual finding of the California Supreme Court? Reinhardt simply characterized the state’s highest court’s finding that the average voter knew what he or she was doing as “hesitant” and so not really binding. Apparently, by measuring the validity of court decisions by degrees of confidence, Reinhardt--a kind of judicial Mount Vesuvius--has erupted with a new smothering federal legal doctrine: Presumably, it is now the purpose of federal courts to make constitutional pronouncements by gauging the level of confidence or enthusiasm registered by state courts.

Our state constitution for 85 years has preserved the power of the electorate to propose and enact laws through initiative or proposition. For Reinhardt, the process is a menace that needs to be confined by the strictest possible judicial chains. In his decision, he complains that the initiative process lacks the “deliberative filters” of the legislative process--a point of considerable irony, given the subject matter of the initiative before him. He laments that the voters’ “lack legal or legislative expertise or even a duty . . . to support the Constitution.” He doubts that voters apply any “careful consideration” of the matters presented to them for vote. He is certain that the electorate “lacks the ability to collect and to study information” sufficient to allow it to make an informed decision. And as such he concludes that the federal courts must ensure that the “deficiencies of democracy” are not allowed to go unchecked. Thank God Reinhardt is there to save us poor folks from ourselves. The hubris and elitist arrogance of his anti-democratic belief is breathtaking.

Reinhardt quotes James Madison to demonstrate the Founding Fathers’ concern with the limits of majority rule (the judge evidently equating the initiative process with the “tyranny” of the majority). On the other hand, he avoids Alexander Hamilton’s warning that while the federal judiciary would be the “least dangerous to the political rights of the Constitution . . . [because it is] beyond comparison the weakest” of the three branches of government, liberty “would have everything to fear from its union” with either of the others. Reinhardt shrinks from Hamilton’s admonition for good reason. Under his theory, the judiciary effectively usurps the prerogatives of the other branches.

The Reinhardt thesis is that no initiative will be constitutional until a federal court has blessed it by finding that all voters understood the precise effect of the enacted law and gave it due and careful consideration. This arrogant decision may jeopardize Propositions 13 (property tax relief), 65 (protection against toxic exposure), 98 (school district minimum financing), 184 (felony three-strikes) and 209 (anti-discrimination). For Reinhardt, it is not government of, by and for the people, but government of, by and for those with the highest LSAT scores.