Power to the people! It's in the constitution

A legal dispute about tinkering with Initiative 601's spending limits takes us back to the founding principles of the nation and the Washington constitution. Did you know Tim Eyman is a radical Whig?

Justice Richard Sanders of the Supreme Court of Washington.

Justice Richard Sanders of the Supreme Court of Washington. None

Washington Supreme Court Justice Richard Sanders is perhaps the deepest thinker on his court. He dives to the bottom of constitutional issues, asking: Where do the basic concepts come from? What's the underlying political and legal theory? What did the Nation's founders think about this topic in 1789? What did Washington's founders have in mind in 1889? This doesn't mean that Sanders is always right. And he routinely fails to bring his colleagues along with him. A libertarian with a noticeably independent streak, Justice Sanders authors more dissenting opinions than anyone else on Washington's high court, and his dissents and concurrences often contain vigorous philosophical journeys into American constitutional history and politics.

In his recent concurring opinion in Washington Farm Bureau Federation v. State of Washington, 162 Wn.2d 284, 308 (2007), Justice Sanders resurrected a vital debate from 1787, pulled it forward 100 years to Washington's founding, and came to an important conclusion that is partly right and partly wrong. His thinking, which he himself labeled "unorthodox" in a law review article, is worth review and discussion. Farm Bureau was a challenge to the state legislature's 2006 tinkering with Initiative 601 spending caps. Washington's constitution provides that after an initiative is passed, the Legislature may amend it during the next two years with a two-thirds vote of each house, and thereafter may amend it with a simple majority. In Farm Bureau, the Washington Supreme Court held that because the two-year waiting period had passed, a legislative majority was well within its power when it increased previously-adopted spending limits and declared that Initiative 601 had been complied with despite the plaintiff Farm Bureau's protestations.

In the majority opinion, Justice Mary Fairhurst stated that it is "a fundamental principle of our system of government that the Legislature has plenary power to enact laws, except as limited by our state and federal constitutions." That statement got Justice Sanders' dander up. He criticized it as "careless rhetoric" and launched into a critique of the court's traditional view that the Legislature has "plenary" (i.e., full) power to pass laws. Justice Sanders put his discourse in a "concurring" opinion, meaning that he agreed the Legislature could change I-601 expenditure limits but that he did not buy the majority's reasoning.

Sanders said Fairhurst's statement about "plenary" legislative power "seems to be based on an erroneous assumption that state governments have inherent powers." He went on to assert, as he has in other cases and in law review articles, that this presumption about inherent legislative power "contradicts the basic premise of all American governance that all power resides in the people except insofar as it has been delegated to the government." Fairhurst shot back in a footnote that Sanders' views were based on "a long standing, but mistaken, understanding of the foundational principles of state government," and she reiterated the court's oft-stated view that the Legislature's power was "plenary."

Sound like a tempest in a teapot? It is. But it is a fascinating little tempest, and one that has been around since 1787, when the current United States Constitution was written, debated, and ultimately approved.

Prior to 1787, the best European (and American) thinkers took it for granted that political power ultimately could not be split. It had to reside in one "sovereign" that had the last word. Most theorists, led by the French political philosopher Jean Bodin, held that there must be a supreme central power in every state. For Bodin, it was the king. Most English agreed with Bodin's basic premise about the impossibility of splitting final political power. The writer Samuel Johnson, for example, proclaimed: "There must, in every society, be some power or other from which there is no appeal."

But not all British thinkers agreed that the king was the automatic focal point of power. The Tories certainly thought he was, but the rival Whigs didn't. Both parties agreed that politics was a perpetual battle between the rulers and the ruled. Yet, while Tories claimed that the king ultimately had full (plenary) power, subject to a few fiscal checks placed in Parliament, the Whigs put plenary power in Parliament, leaving some executive prerogatives with the Crown.


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Comments:

Posted Thu, Apr 17, 9:58 a.m. Inappropriate

Not quite: "Today's 'radical Whigs' in Washington state, like Tim Eyman, repeatedly assert that a majority of electors, through the initiative, can always trump the Legislature."

Not quite...The theory here is less "trump" and more check the Legislature. The people of the State of Washington, via the initiative and referendum process, effectively become a fourth branch of government, a feature unique to Western states and born in large measure out of the Progressive Era in American politics.

Because this fourth branch operates exclusively on an ad hoc basis without formal or ongoing structure, its existence and operation frustrate and madden those who insist that the great unwashed must defer to their betters. As things stand today, Tim Eyman is the de facto head of the fourth branch, or, if you will, the Speaker of the People.

Many complain about him as an interloper contending that if he really cared he should run for office and make law that way. They absolutely miss the point. Under the Washington Constitution, he's making law its way and doing so with a batting average better than most who get elected.

Direct legislative democracy was born out of a deep distrust of elected officials who were corrupt - who catered to the whims and pocketbooks of powerful special interests. Not much has changed today. In the late 19th and early 20th Centuries, it was railroad interests. Today it's big business, big labor, and big government interests. In both cases, We the People, through our fourth branch, can maintain some control, even if occassionally imperfect, over the profligates and libertines who seek to pick our pockets for their gain.

The Legislature hates this with a bloody awful passion, and it is joined in this by not only those against whom the people's efforts serve as a check, but also those whose political heritage does not include Western-style direct democracy. In other words, dudes from back east.

Yet it's interesting that the Legislature's most recent experience with a Tim Eyman effort - re-enacting his I-747 one-percent property tax limit - was an exercise in abject deference to him in his role as Mr. Speaker. No less than they would now during the visit of Pope Benedict XVI, they couldn't wait to kiss his ring by overwhelmingly supporting what most of them hated.

Governor Gregoire, herself counting electoral noses, as much as wore an "I HEART Tim" button as she signed it.

So much for "plenary powers." As long as a disconnect between the people and their elected officials exist, Tim Eyman will be busier than a beaver. As it looks today, Mr. Speaker has near-guaranteed life tenure.

The Piper

Posted Thu, Apr 17, 1:11 p.m. Inappropriate

RE: Not quite: Not quite...The theory here is less "trump" and more check the Legislature. The people of the State of Washington, via the initiative and referendum process, effectively become a fourth branch of government, a feature unique to Western states and born in large measure out of the Progressive Era in American politics.

No. The people reserved and retained some of their rights and powers of enacting legislation that were entirely given to the Legislature in the original Constitution.

Because this fourth branch operates exclusively on an ad hoc basis without formal or ongoing structure, its existence and operation frustrate and madden those who insist that the great unwashed must defer to their betters. As things stand today, Tim Eyman is the de facto head of the fourth branch, or, if you will, the Speaker of the People.

You do realize that initiatives to raise the minimum wage and raise teacher salaries received BETTER percentages of votes than any Eyman initiative, right?

Go look them up on the SoS elections website. Here, I'll help: I-688, I-728 and I-732.

Many complain about him as an interloper contending that if he really cared he should run for office and make law that way. They absolutely miss the point. Under the Washington Constitution, he's making law its way and doing so with a batting average better than most who get elected.

How many Eyman initiatives have been struck down as unconstitutional?

Also, did you object when the Legislature suspended I-728 and I-732 for financial reasons? Just wondering. I don't remember Tim Eyman getting in a lather, but he's just a conservative blowhard hypocrite who uses the campaigns for badly written initiatives to supplement his watch salesman income... and then lies about it. I'm sure you had the consistency to be outraged when the legislature decided the business of running a state outweighed keeping faith with a law enacted by the people that wasn't reflecting the times we were in.

The funny part is if there was a liberal Tim Eyman who, say, decided it was time to get past the glacial pace that health care coverage is being extended in this state, they probably could get MORE votes than the average Eyman initiative, based on I-688, I-728 and I-732. Hell, this state enacted the right to abortion into law by voter referendum BEFORE Roe v. Wade...

Posted Thu, Apr 17, 5:31 p.m. Inappropriate

It's all about political power!: Spitzer's story about Sanders tempest in a teapot makes the skeptic very curious. Since Spitzer opened the door, it's fair to ask whether his excursion into the history of constitutional law is about the law itself, or an indirect attack on Tim Eyman and the initiative process.

Whether we like it or not, our elected Supreme court is as much political as judicial. They will deny it of course. Sitting on the Supreme Court doesn't raise the members to some lofty place above their individual political ideologies. The court is rich with progressives as is the current legislature. It comes as no surprise that the court and the legislature have a distant, but symbiotic relationship along with a mutual, but unspoken desire to support each other. Any decision that challenges the legislative authority faces an uphill battle in this Supreme court. However clever it may be to point to the state constitution for the rationale of plenary authority granted to the legislature, in practical politics it remains little more than a strategy to retain political power.

Spitzer doesn't mention that nearly all of the cases before the State Supreme court are there only because the legislature itself failed to make their legislation clear and unambiguous. Nearly every case revolves around the justices attempting to determine what was the legislative intent of poorly written RCW's or the failure to fully comprehend the issues for which they were creating the legislation.

Spitzer provides constitutional history, but leaves out that much of the debate over the powers of the three branches also dealt with the public's need to check on all of them. As the Bush administration comes to its close it seems clear that the people needed to have oversight over all the branches. In Washington state that right is authorized by the initiative process. It's no surprise the legislative ego is bruised by any public challenge to their imagined wisdom. Plenary authority? Hell, this is about pure political power.

If we were to adopt Spitzer's apparent thinking all court decisions would be unanimous with rubber stamp thinking with no dissenters like Sanders who persists in challenging group think and stirring the pot.

Hugh Spitzer is a popular and very personable attorney with Foster Pepper, one of Seattle's big law firms. His firm has given him the time and opportunity to travel all over the state on speaking engagements. You could bet that Foster Pepper would be delighted if Spitzer threw his hat into the ring and ran against Sanders. Then some of their big clients might find supreme court challenges heard by an even friendlier court.
KK

Posted Fri, Apr 18, 11:07 a.m. Inappropriate

RE: Not quite: "The funny part is if there was a liberal Tim Eyman who, say, decided it was time to get past the glacial pace that health care coverage is being extended in this state, they probably could get MORE votes than the average Eyman initiative, based on I-688, I-728 and I-732."

"If"...If wishes were horses...

Bring this erstwhile liberal savior of the masses with his initiative petitions forward. Let him contend for the title of Speaker of the Fourth Branch - We the People. He/she, you, they, them, whoever have every right and every opportunity to have a go at it; it's a free country.

In the meantime, understand that the sentiments of most Washingtonians routinely get mirrored in Tim Eyman initiatives, irrespective of the Washington Supreme Court's opinion of them. Even when they're struck down, the Democratically controlled legislature and the Democratic governor of the moment can't wait to enact their provisions into law.

Don't delay, start an intitiative petition effort today.

The Piper

Posted Fri, Apr 18, 11:19 a.m. Inappropriate

Not fit to comment on the Constitution: Any member of a profession that claims to own the Constitution is not fit to serve the public in any capacity. In fact, by their own common law, they are second class citizens not worthy of any authority whatsoever for the remainder of their lives -if even any employment at all...

If they refuse to hold themselves accountable to their own law the recourse is their clients. Funny thing about how bad Lawyers mess up everybody....

Some Law, for those willing to see the truth

Posted Fri, Apr 18, 3:10 p.m. Inappropriate

Power to the people! It's in the constitution By Hugh Spitzer: Spitzer says "Here's where Sanders is right and where he's wrong. He is correct to remind us that the people ultimately hold all power. The people decide, through constitutions, who makes choices on their behalf. The people decide which rights to retain (for example, the rights of initiative, referendum, and recall). And the people can amend the state constitution and adjust our system of state government so long as the changes are compatible with the national constitution." But it should be made clear that under our state constitution the people cannot amend the constitution directly through the initiative, only indirectly through their elected representatives. Article XXIII, section 1 says in pertinent part, "Any amendment or amendments to this Constitution may be proposed in either branch of the legislature; and if the same shall be agreed to by two-thirds of the members elected to each of the two houses, such proposed amendment or amendments shall be ... submitted to the qualified electors of the state for their approval, at the next general election; and if the people approve and ratify such amendment or amendments, by a majority of the electors voting thereon, the same shall become part of this Constitution ..."

jwg

Posted Wed, Apr 23, 9:48 a.m. Inappropriate

One Act Con Game By Hugh Spitzer: From the P-I, November 18, 1997:

"Washington state's Constitution stars with a Declaration of Rights stating that "all political power is inherent in the people" and that governments are established to protect and maintain individual rights."

Op-Ed by Hugh Spitzer


One must remember that our democracy is based on the protection of individual rights - the way Mr. Spitzer, along with classmates Jenny Durkan and Ted Bundy, have put the Constitution into practice in this state is in direct conflict with the words written. This is perhaps the most blatant example of Orwellian double speak you will ever see.

Mr. Spitzer - a serious violation of any individuals Constitutional Right's is no different from rape - the control problems may well be dictated by the very same regions of our DNA as it manifests itself in the human brain. When your firm stands behind one its senior partners in violating same your entire firm becomes nothing more than the penis of a rapist. Take, for example Tayloe Washburn and Toby Thaler.

The University of Washington's allowing you to even speak on Campus is proof of the corruption of the most senior leadership of that institution. Your continued pattern of the legal equivalent of financial fraud amounts to nothing but a condemnation of not only every senior partner in your firm, but also of your clients.

And if you need any more confirmation, take my case, please.

-Douglas Tooley
South Tacoma

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