Vik Amar for Justia:
Among the legal stumbling blocks currently being talked about is the California Constitution’s vexing distinction that I analyzed in detail (in the two postings linked above) between so-called “amendments” to and “revisions” of the document. I continue to believe that Cal3 represents a revision that requires the legislature in Sacramento to approve before the voters can weigh in.
But the more I reflect on the legal challenges that might be made to Cal3, the more I believe that a federal constitutional problem may create similarly large obstacles for the ballot proposal.
I speak here of the requirement in Article IV, Section 3, of the US Constitution that before new states can be created out of existing states, there must be “Consent of the Legislatures of the States concerned.” The question is whether the people of a state can, within the meaning of the federal Constitution, act directly to constitute a “legislature” for these purposes, or whether the elected folks in Sacramento have to consent instead. (Interestingly, the state law revision/amendment issue and the federal Article IV issue both focus on the permissibility of direct action by the people in lieu of action by elected state representatives, even though they come at the question from different legal routes.) My own view, based on scholarship I have done on the text, history, and structure of the Constitution is that the people of a state should be able to consent by initiative because the word “legislature” in the Constitution should almost always be read to permit direct action by the people, but my views in this regard have been rejected by recent US Supreme Court case law. And since lower courts (both state and federal) are bound by the US Supreme Court’s reading of the US Constitution, legal challenges to Cal3 based on Article IV of the federal Constitution have legs.