adopting a “liberal interpretive tradition ... of sustaining statutes and initiatives which fairly disclose a reasonable and common sense relationship among their various components in furtherance of a common purpose”
How later courts described this case
- adopting a “liberal interpretive tradition ... of sustaining statutes and initiatives which fairly disclose a reasonable and common sense relationship among their various components in furtherance of a common purpose”
- holding that Proposition 8 constituted a constitutional amendment and not a revision
- noting "the right to safety encompassed" under the safe schools clause "was intended to be, is aimed at, and is limited to, the single subject of safety from criminal behavior"
- "[S]tudents and writers seem generally in accord that reapportionment . . . has been neglected where it has been left to legislators."
Written by the judges who cited it.
The opinion
MOSK, J.
I dissent.
A bare majority of this court have rejected fundamentals of constitutional law that have consistently guided this state in the conduct of its affairs. In lieu of those basic principles, four justices now declare that initiative promoters may obtain signatures for any proposal, however radical in concept and effect, and if they can persuade 51 percent of *298 those who vote at an ensuing election to say “aye,” the measure becomes law regardless of how patently it may offend constitutional limitations.
The new rule is that the fleeting whims of public opinion and prejudice are controlling over specific constitutional provisions. This seriously denigrates the Constitution as the foundation upon which our governmental structure is based.
James Madison, in the Federalist Papers (No. LXXVIII), wrote, inter alia, “The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It, therefore, belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body [or the people acting in a legislative capacity].”
Crime is indeed a serious problem of society. But it must be approached with determination and intelligence, not by destruction of the values that have made this the greatest nation on earth. A thoughtful political observer (Tom Wicker in the New York Times) has written: “It is a good thing that neither the Bill of Rights nor the Magna Carta is the pending business of [legislative bodies] these days.... [I]n the present mood of political panic and myopia, it would undoubtedly be voted down as a needless restraint in the war on crime.” In the same vein, Chief Justice Warren spoke about “straws in the wind” that worried him, and “which cause some thoughtful people to ask whether ratification of the Bill of Rights could be obtained today if we were faced squarely with the issue.” (Katcher, Earl Warren (1967) p. 332.)
It is not unduly dramatic to suggest that proponents of this initiative have yielded to “panic and myopia” in what they describe as a “war on crime.” In submitting to the same fears, four justices by a stroke of their pen have obliterated a section of the California Constitution in deference to what they charitably describe as “the extremely broad sweep of this legislation.”
Article II, section 8, subdivision (d), is now virtually a dead letter. If an initiative that adds seven separate subdivisions to the Constitution, repeals one section of the Constitution, adds five new sections to the Penal Code and three more sections to the Welfare and Institutions Code, can be held to contain “one subject,” then any combination of topics un *299 der the rubric of “general welfare” or “pursuit of happiness” can be deemed one subject. If the 12 separate subjects enumerated by the Attorney General in his ballot title of the measure can be determined to be merely one subject, then Orwellian logic has become the current mode of constitutional interpretation.
In sum, I adhere to the views on the one-subject rule expressed in my dissent in Brosnahan v. Eu (1982) 31 Cal.3d 1, 5-14 [ 181 Cal.Rptr. 100 , 641 P.2d 200 ]. I conclude that Proposition 8 fails to meet the provisions of article II, section 8, subdivision (d), of the Constitution under either the “reasonably germane” test of Evans v. Superior Court (1932) 215 Cal. 58 [ 8 P.2d 46 ], or the “functionally related” test proposed by the late Justice Manuel in Schmitz v. Younger (1978) 21 Cal.3d 90 [ 145 Cal.Rptr. 517 , 577 P.2d 652 ] and endorsed by this court in Amador Valley Joint Union High School Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208 [ 149 Cal.Rptr. 239 , 583 P.2d 1281 ].
Constitutional principles, wrote Chief Justice Warren, “are the rules of government.” (Trop v. Dulles (1957) 356 U.S. 86, 103 [ 2 L.Ed.2d 630, 644 , 78 S.Ct. 590 ].) And, added Justice Jackson, “the great purposes of the Constitution do not depend on the approval or convenience of those they restrain.” (Everson v. Bd. of Education (1947) 330 U.S. 1, 28 [ 91 L.Ed. 711, 729-730 , 67 S.Ct. 504 , 168 A.L.R. 1392 ].) Chief Justice Wright also said it well: “A democratic government must do more than serve the immediate needs of a majority of its constituency —it must respect the ‘enduring general values’ of the society. Somehow, a democracy must tenaciously cling to its long-term concepts of justice regardless of the vacillating feelings experienced by a majority of the electorate.” (Wright, The Role of Judiciary (1972) 60 Cal.L.Rev. 1262, 1267.)
The Goddess of Justice is wearing a black arm-band today, as she weeps for the Constitution of California.
Broussard, J., concurred.
The application of petitioners Brosnahan and Raven for a rehearing was denied October 13, 1982. Bird, C. J., and Broussard, J., were of the opinion that the application should be granted.