Print

Email story

Comment

Email editor

A higher standard

The initiative's direct democracy isn't what our founders envisioned.

By Major B. Harding
Published October 15, 2006

As former chief justice of the Florida Supreme Court, I support requiring broader public support for changing the Florida Constitution. The initiative process to amend our constitution raises an important question; namely, to what extent should the Constitution be used to effect and institute policy as opposed to establishing the form of government and preserving individual rights.

In an advisory opinion to the attorney general regarding limiting net fishing, Justice Parker Lee McDonald stated: "The legal principles in the state constitution inherently command a higher status than any other legal rules in our society. By transcending time and changing political mores, the constitution is a document that provides stability in the law and society's consensus on general, fundamental values. Statutory law, on the other hand, provides a set of legal rules that are specific, easily amended, and adaptable to the political, economic, and social changes of our society."

Through the ballot initiative process, Florida has permitted the placing of various groups' social, political and economic agendas into the basic foundational document of our state. As reflected by the statement of Justice McDonald, these issues change from time to time as economics and social policy require. While there may be debate as to whether some of the items that have been included in the Florida Constitution by initiative and referendum are, in fact, fundamental elements of an ordered society, there is little argument that issues like the net ban, high-speed rail and treatment of pregnant pigs are items that provide stability in the law and society's consensus on fundamental values.

There are matters of social, political and economic policies that are best left to the legislative process. Obviously, by virtue of the fact that 16 states have adopted a direct initiative to amend their constitutions, there are genuine arguments in favor of such a procedure. The initiative process was initially adopted because of perceived abuses in the legislative processes during the late 19th and early 20th centuries. Citizens perceived that state legislatures were controlled by "special interests, such as railroads, bankers, land speculators and 'robber barons.' "

However, there are valid reasons why such a process that allows a constitution to be amended to include social, political or economic issues should be used with great caution and require more than a simple majority of voters before adoption. Special interests can control the direct initiative process in much the same way that they were perceived to control the legislative process. Not all special interests are of the "robber baron" type. There are initiatives which large population centers may favor and get passed over the objection of the more rural areas of the state.

Further, constitutional amendments have increasingly become the result of extravagant spending by special interest groups. From the gathering of signatures to the costs of the media campaigns that follow, experience has shown that unless there is a similarly well-financed campaign in opposition, these initiatives proposed and sponsored by special interest groups are generally adopted.

The direct democracy allowed by the direct initiative differs from the representative democracy envisioned by our founders. The American form of representative democracy was created to balance minority and civil rights against the dangers of rule by the majority.

While a direct initiative is a part of our legislative and lawmaking process, consideration should be given to ensure the process does not fall prey to the special interests for which the process was created to eliminate.

Raising the threshold for passing constitutional amendments to 60 percent is one valid way to protect the Constitution from those interests. Furthermore, it will retain the direct democracy for citizens as a way to impact Florida law. I will be voting yes on Amendment 3.

- Major B. Harding was a Florida Supreme Court justice from 1991 to 2002.

[Last modified October 15, 2006, 07:36:29]