Top historian warns of flaws in California recall process

October 20, 2003

San Jose Mercury News

By Renee Koury
Mercury News

James Madison would have been very disappointed that Californians got together and kicked their governor out of office this month, a noted historian told a panel of deep thinkers at Stanford University on Saturday.

Since Madison is no longer around to explain the foundations of representative government vs. popular rule, Pulitzer Prize-winning historian Jack Rakove did.

``There is something deeply disturbing about what is going on in this state,'' Rakove told the panel. Madison advocated the representative form of government to ensure one body makes decisions for the benefit of the overall society, rather than giving vocal factions direct powers to make change.

Yet, California's initiative process, in which any group can put proposals on the ballot with enough signatures, and the little-used voter recall, allow that direct access to change.

``People have learned to manipulate the initiative process,'' Rakove said. ``The smaller the group, the more dangerous it is,'' he said, noting that it takes relatively few to get recalls and initiatives on the ballot.

Rakove spoke on a panel with some of the nation's brightest legal minds: U.S. Supreme Court Justice Anthony Kennedy and three renowned Stanford law professors -- Law School Dean Kathleen M. Sullivan, Internet expert Lawrence Lessig and voting rights expert Pamela Karlan.

Two centuries after the Constitution was drafted, the legal heavyweights spent Saturday morning mulling and agonizing over what the founding fathers intended and what forces influenced its evolution over the past 200 years. They agreed that political forces have as much to do with amendments and interpretations as do court rulings.

More than 500 alumni who gathered this weekend for a multi-generational reunion listened intently.

Kennedy said the high court has waited for a signal from legislators on how to rule on difficult cases involving issues such as abortion and the right to die.

``You might have a comatose woman, alive by one definition and dead by another, and the court says, `Wait, the political process will come in, and the court will have a little more time to decide.' Meanwhile, do you let a person keep suffering because we as an institution aren't ready to move?''

Karlan said that TV coverage of harassment of blacks in the South did more than the 15th Amendment to give African-Americans the right to vote.

``Black people didn't really get to vote until many years after the 15th Amendment gave them the right,'' Karlan said. ``It took the Voting Rights Act of 1965 to make it happen.''

The Constitution has long been used as a framework for other developing nations and may be a model, at least for comparison, for Iraq and Afghanistan as they reorganize their governments, panelists said. In particular, they look to the Bill of Rights.

``You find the other nations want freedoms for women, freedom of speech and freedom of religion,'' Karlan said.