Direct Democracy and the Initiative Process

California Cases Reveal the Dangers and Successes of Direct Democracy at the State Level

A major flaw of direct democracy is a tendency of the majority to abuse the rights of the minority.  Such abuse is mitigated on the national level by the restraints in the Constitution that established our federal republic. The Electoral College is a consequence of the protections built into the Constitution. Rules established by the Senate and House of Representatives on the federal level can also be used by the minority party to moderate abuse by the majority (eg. the fillibuster rule in the Senate). Similar procedural rules are available in the various state legislatures to varying degrees.  The deliberative process of legislatures generally can be credited with allowing cooler heads to prevail. While in the early days of the Republic there were many examples of minority rights being trampled by the majority, as our nation matures the genius of our founding documents is increasingly evident as the rights of minority persons and parties have been protected, occasionally requiring an appeal to the federal courts and the U.S. Supreme court for redress.

Direct Democracy is Safer when it is Closer to the People

Direct Democracy is dangerous on a national level, questionable on a state level, an amusing hobby for politicians on a county and muncipal level, and virtually ignored on a family level. Is it any wonder then that the word DEMOCRACY does not appear in the Constitution of the United States. Democracy doesn’t even function on an individual level as is evident when a person resolves to to abide by self-discipline only to succumb to human frailty. At least little damage is done when an individual makes a bad decision; it is easily reversable.

Twenty-six states plus the U.S Virgin Islands have provisions in their laws that allow direct Initiatives or Referendums by the people. In practice the exercise is not direct democracy becasue most of the initiatives are sponsored and funded by special interest groups as an end run around the more reserved and deliberative legislative process by elected representatives.  In 2001, the National Conference of State Legislatures assembled a task force to review the growing use of initiatives and referendums around the country and to examine their effect on representative democracy at the state level. They found that abuse of the Initiative and Referendum process outweighed the  advantages and suggested that other states should avoid enacting such provisions.

The case of California is an example of why the Initiative process has outlived its usefulness.

California has become a one party state with Democrat supermajorities in both houses of the legislature, able to run roughshod over the minority party.  The supermajority allows Democrats in California to raise taxes, place measures on the statewide ballot, enact laws with “urgency” clauses, and override the governor’s veto. In spite of the concentration of power in the Democrat Party, state legislators have their hands tied in 2017 because of past citizens’ Initiatives. On the surface it can be argued that the initiative power of the people can overcome abuse by elected officials. But what started in 1978 as a citizen revolt against high taxes has combined with intervening economic and demographic events to create a crisis in California’s finances.

Since 1978, when Proposition 13 (prop 13) lowered property-tax rates, hundreds of recalls, initiatives, and ballot propositions have been approved in California, but few have had the long term and poorly understood effect of  prop 13. In response to rising property taxes, the people amended the state constitution to fix property taxes at 1%.  In 1992 the U.S. Supreme Court upheld the constitutionality of prop 13 in Nordlinger v. Hahn, 505 US 1 – Supreme Court 1992.

Now it appears that the rigid property tax regime built into the state constitution has distorted economic conditions in a similar way that rent controls and over-regulation can distort a free economy. It has reduced local control of schools because inflexible property tax revenue has necessarily been replaced by funds from state income taxes. The following articles review some of the other distortions to California’s economy.

Citizen legislation through the Initiative process does not uniformly result in disasters. Here we have explored the unintended consequences of prop 13 that have left the state with intractable economic problems. The two propositions 8 that follow, while not resulting in disaster, demonstrate the questionable value of direct democracy on the state level.

Proposition 8 (2008)

In 2008, citizens of California placed a referendum on the ballot to ban gay marriage.  It passed by a vote of 52 to 47 percent.  As a State Constitutional Amendment, it was ruled constitutional by the California Supreme Court in 2009.  In 2010, it was ruled unconstitutional by a federal district court on the basis that it violated the Fourteenth Amendment of the U.S. Constitution (Equal Protection). Finally, in 2013, the case was decided on technical grounds (standing) by the U.S. Supreme Court:

Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) – this case dealt with the Prop 8 litigation coming out of California. The Court held that, as private parties with a “generalized grievance,” the Prop 8 proponents did not have standing to appeal the District Court ruling. The Court explained that Article III of the Constitution confines the power of the federal courts to deciding actual “cases” or “controversies.” Once the District Court issued its order, the Prop 8 proponents “no longer had any injury to redress,” and that “no matter how deeply committed petitioners may be to upholding Proposition 8,” their interest was insufficient to confer standing. Given its ruling, the Supreme Court left the District Court’s opinion – that Prop 8 violated the Fourteenth Amendment – as the final and controlling decision on the merits.

Proposition 8 reflected deep religious and political views of people who financed the Initiative and validated both the informed and uninformed sentiments of enough people for it to pass. One can assume that a great number of the 47 percent who opposed the Initiative voted based on reason, emotion, or both.  The 2008 prop 8 occurred within the context of national debate about same-sex marriage where other states ended up voting laws both in favor and against. Finally in  June 26, 2015, the United States Supreme Court settled the matter in Obergefell v. Hodges that state-level bans on same-sex marriage are unconstitutional. It is understandable that Californians who wanted to preserve traditional marriage would use the only tool available to them, the Initiative. They knew that the legislature would not, or perhaps could not, give them the result they wanted.  Liberty demands

The Other Proposition 8 (1982)

Proposition 8 (or The Victims’ Bill of Rights) was a Initiative enacted by California voters on 8 June 1982 that amended the state constitution.

“A growing hyper-vigilance about “unsafe streets” paired with a general perception that state judges were more concerned with safeguarding criminal defendants’ rights than with affording victims a meaningful voice within the trial process sparked an impassioned victims’ rights movement. A broad constituency of politicians, police officers, prosecutors and activists lobbied extensively to correct what they considered a substantial imbalance between victims’ and defendants’ rights. This coalition urged the state legislature to enact reforms that prevented judges from broadly applying the exclusionary rule, which, under certain circumstances, excluded relevant evidence from trial. Fundamentally, this coalition sought to give victims the opportunity to become more active participants in the trials of their assailants.  But when the activists found legislators to be indifferent to their cause, they turned instead to California’s initiative power for a solution.”  (Berkeley Journal of Criminal Law, Volume 14, Issue 1, Article1, p 4)

It passed 56 percent to 44 percent, making California the first state to have a constitutional amendment that provides specific enumerated rights to victims of crime.  The California Supreme Court upheld the amendment in a 4 to 3 decision.

This is a case where those most familiar with issues of criminal justice formed and financed the coalition to advance the Initiative. Rather than being an instance of the majority taking the advantage of a minority, prop 8 (1982) is seen as a win for the victims of crime and brought California’s liberal exclusionary rules into conformity with narrower federal rulings.

California’s Direct Democracy Simplified

Here is a concise definition of California’s direct democracy courtesy of the Houghton Mifflin Company’s Weekly Reader

Do Citizens’ Initiatives make Legislators More Responsive?

Whether direct democracy achieves its goal of making state legislators in the United States more responsive to the concerns of the people is a question still debated today (See, e.g., Richard J. Ellis and Michael Nelson, editors, Democratic Delusions: The Initiative Process in America, 2002). Here are some quotes that sum up Ellis’ argument against the initiative process as it has been proposed on a national level:

“For all their failings, legislatures have the singular virtue of being capable of identifying, correcting, and learning from past errors…and so neither citizens nor legislatures see anything wrong or unusual in changing and improving current laws. …government policy enacted by the legislature is treated as the law of the land, not as the godlike voice of the people.The real problem with initiatives is not that they are more likely to produce poor public policy than are legislatures – though they may – but rather that mistakes made by initiatives are generally more difficult to correct. A successful initiative, unlike a legislative action, is widely assumed to be the authentic expression of the “voice of the people.” …Even the modest attempt to have voters reconsider their decision brings howls of populist outrage.”

“When activists proclaim that the initiative process “belongs to the people” they obscure the political reality behind a fog of populist platitudes. The initiative literally belongs to the few who write the measures, not to the many who vote. A national initiative would do little or nothing to empower the people; instead it would provide political activists, politicians, and special interests another way to get what they want.”

Direct Democracy in Switzerland

Switzerland has a population of just under 8-1/2 million. Each of the 26 sovereign cantons (states) has a population of under 500,000 except Zurich and Bern with populations slightly over one million, and Argau and Vaud with close to 500,000 each  The literacy rate of those age 15 and over is 99% compared to the United States at approximately 86%.  Direct participation in government begins with the self-determination of the individual,then to the municipalities, district, canton, and finally to the national level. Most of the power resides with the cantons and municipalities.

Citizens routinely propose measures for consideration by all levels of government, which if not acted upon by government, is taken to a vote of the people. What happens in practice is proposals by the people are analysed by the elected officials, who propose a similar but better formulated and written solution, which is then substituted for the citizen iniatitive, and eventually ratified by a vote of the people. It is a collaborative form of governing with very little dissent.  The percentage of successful initiatives is Switzerland is only about 10 percent.  Most initiatives are withdrawn from the legislature before they reach the ballot.

According to Richard Ellis (cited above) in Democratic Delusions: The Initiative Process in America, the most common reason for the Swiss consensus is that the legislature has promised or taken action that satisfies the proponents.

Ellis writes that:
 “The initiative in Switzerland is thus an integral part of the legislative process and is often used as a spur to get a majority in the legislature to heed the concerns of minority groups that have previously been thwarted in the assembly. Unlike in the United States, where the initiative process is a badly confrontational, zero-sum game, in Switzerland it is often employed to arrive at a consensus by facilitating legislative deliberation and compromise.”

The major difference between direct democracy in Switzerland and the U.S. is a higher degree of participation by a highly literate populace in Switzerland, and a low degree of interest in the United States, particularily at the local level where voter turnout often does not exceed 20%.

Here is an interesting article about Direct Democracy: Ties between Switzerland and the U.S. from the Library of Congress.

Who Really Controls the United States?

In the above article from the Library of Congress, James W. Sullivan (1848-1938) stated that the goal “of the direct democracy movement was to circumvent the legislators whom he considered “habitually” corrupt and non-responsive to the needs of the people in a society in the transition to an industrial country.”

Now we have evolved from an industrial economy to what has been described as retail and service economy. Even that description is in transition as most areas of the country are in a “healthcare and social service” economy.  As the debate over Obamacare rages on, Federal deficits soar, and both direct and representative democracy seem to have failed us.

Watch this animated map from the Bureau of Labor Statistics (HERE-opens in a new window)     Press PLAY to see the changes from 1991 to 2013

The debate over healthcare brings the centuries old argument about socialism into sharp focus except that no one dare utter the word socialism.  At this point in our national journey through time, there are more questions than answers. Representative Democracy has served us well in preserving personal liberty but can personal liberty survive in the face of socialism?  Certainly a large number of Western European Democracies are indulging in what is called Social Democracy. The trouble with incremental social change is that the time cycles are very long and by the time a society experiments with an idea many years can pass before the wisdom or the folly of the idea is clearly mainfest. Will Social Democracy evolve into Democratic Socialism as advocated by the self-styled Democratic Socialist Bernie Sanders?

The answer to that question depends on a literate populace participating in Representative Democracy, acting on unbiased information from a well informed media. In this way, the people will continue to control the United States.

The problem we now face appears to be a poorly educated populace acting on propaganda from a poorly educated media marching in lock step with a global elite whose wealth  individually exceeds that of many nations. As smart as the global elite are at making money, it is doubtful that they match the wisdom and knowledge of liberty that animated the Founders of our nation and the Swiss Confederation. The Western Democracies come in a close second in preserving personal liberty but they too face an erosion so imperceptively slow that one day the free nations will awaken and wonder what happend to freedom.

The Argument to Remove Marijuana (Tetrahydrocannabinols) from DEA Schedule 1

If you are a young healthy person, you should not be using marijuana.  It will make you more stupid than you already are if you become a heavy user.  But should you be prosecuted if you make the choice to use it?

Its continued classification in Schedule 1 by the DEA is based on 21 U.S. Code § 812 – Schedules of controlled substances, and its administration is subject to the complexities and corruption of the regulatory state. The claim that the regulatory state is corrupt is separate argument.

The findings required for Schedule I are as follows:

(A) The drug or other substance has a high potential for abuse.

(B) The drug or other substance has no currently accepted medical use in treatment in the United States.

(C) There is a lack of accepted safety for use of the drug or other substance under medical supervision.

Marijuana clearly does not meet ANY of the three criteria.

Rather than argue that marijuana does not meet these criteria and should be placed in another schedule overlooks the question of whether 21 U.S. Code § 812 should not simply be amended by Congress to allow the states to deal with marijuana as the various states very ably deal with the question of alcohol.

The primary duty of the Federal Government is to protect the citizens of the U.S.  There are enumerated powers  given by the people through operation of the Constitution to Congress.  The Tenth Amendment places limits on the power of the Federal Government:  “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Indeed we have strayed far from these simple principles.  The alphabet soup of agencies and departments has become self-perpetuating:  ATF, CDC, CIA, DEA, DHS, DOD, DOE, ED, EPA, FBI, FCC, FDA, IRS, NSA, SSA, TSA.  We have sacrificed our liberty for the perceived security promised by governments.

Marijuana is a proxy for regaining our freedom, including the freedom to become intoxicated, just as single malt Scotch Whiskey is a proxy for freedom and intoxication. The era of prohibition from 1920 to 1933 ended when Utah was the last state to provide the 36th and final vote for ratification of the 21st Amendment.   It put away the sad legacy of the 18th amendment to the Constitution, which saw crime, gang violence, imprisonment, illicit use, and government corruption soar.

This time all that is required to regain some small freedom is for Congress to act. The states are doing a good job taking the place of illicit drug dealers.  The quality of the product has increased dramatically in states where marijuana is legal. Research is going on to determine what works and what people want.  Old people have a safe way to get help sleeping and cancer patients have help with their pain – all without expensive and dangerous drugs from conventional organized medicine.

In states where marijuana is legal, either medicinally or free-choice, use among adolescents is declining.  Teens and young adults are beginning to understand the risk to the developing brain and have freely chosen to abstain or at least limit their use.

The benefits are obvious:

  • Personal freedom
  • No prosecution
  • Better product
  • Money going to state instead of gangs.
  • Licensed dealers do not sell to minors.
  • Frees up law enforcement resources.
  • Dispensaries are safe.
  • Disputes with dispensaries can be settled in court, not in the street.
  • States can intervene if unsafe products need to be removed from commerce.

What is Moral Hazard?

Moral Hazard is predominantly an insurance industry term to describe the actions of an insured party who acts differently than he would if there were no insurance to mitigate the effects of his actions. An example could be a homeowner who smokes in bed, lights candles in the house, and lights off flambé in a dining room close to flammable drapes, all because he knows that the insurance will pay if the house burns down.

Moral hazard is where one entity takes more risk because another entity will pay for mistakes. A common explanation for why this happens is called “informational asymmetry.” It occurs when the parties in a contract have unequal information and one assumes risk without fully understanding the extent of the risk.

The government is a master at creating moral hazards. Taxpayers bear the brunt.

Consider these examples:

  • Obamacare required insurance companies to provide benefits that they knew were not sustainable, but they provided coverage anyway knowing that the government would bail them out. Taxpayers take the hit.
  • Because Obamacare allowed people to sign up after they became ill, the scheme became too expensive to maintain and it failed.
  • Banks took huge risks claiming that they were too big to fail. Frightened politicians bailed them out to “save the economy.” Taxpayers took the hit.
  • Politicians in Illinois vote for generous defined benefit pensions for public employees. Public sector unions encourage their members to vote for the politicians. The unions claim that their members paid their fair share into the pensions, yet since 1998 the percentage actually paid by government workers has increase 75% and that of taxpayers by 427%.  Taxpayers are responsible for paying off current unfunded liabilities plus all future increases as well.
  • Heavy handed regulation encourages people to engage in lawlessness and behavior to circumvent the regulation when the cost of compliance is onerous.
  • Asset Forfeiture Programs in the states and by federal authorities encourage police to prosecute people, not solely because of the nature of a crime, but because of the value of property that potentially can be seized. Civil forfeiture is a proceeding brought against the property rather a person convicted of a crime and has been used to enrich police departments and municipalities, undermining the legitimacy of law enforcement.  Whether the laws that permit such seizures are an example of moral hazard or simply encourage government corruption is open to debate.

An interesting column about civil forfeiture laws by George Will can be found HERE.

Some federal rules have changed since this was written and somewhat reduce the federal government’s complicity under what is called federal agency adoption of property seized by state or local law enforcement. We hope the states take a lead in eliminating ill-conceived civil forfeiture laws.

An article written by Benson, Rasmussen, and Sollars in April 1995 points out:

The Comprehensive Crime Act of 1984 is shown to have altered the incentives of police agencies by allowing them to keep the proceeds of assets forfeited as a result of drug enforcement activities. Empirical evidence is presented which shows that police agencies can increase their discretionary budgets through the asset forfeiture process.

The United States is experiencing a crisis in police-citizen relations. We believe it is urgent that trust in law enforcement and the rule of law be restored. Civil Forfeiture laws, although not well understood by the general public, represent a clear moral hazard or at worse facilitate police corruption.  How can anyone trust the police in a simple traffic stop if the officer starts asking about how much cash the occupants of the car are carrying?  The answer is very chilling to the average citizen and even more chilling to minorities.

The Institute for Justice provides a state-by-state report on asset forfeiture called Policing for Profit. Access their web site HERE and watch the video:

Reform of forfeiture laws is a cause that seniors can take a lead in promoting at the local, state, and federal level. Contact your representatives and ask how they feel about the topic.


According to Wikipedia, Nootropics are “drugs, supplements, or other substances that improve cognitive function, particularly executive functions, memory, creativity, or motivation, in healthy individuals.”

There are a few things you should know before wasting your hard earned money on anything that promises to make you smarter, more motivated, or reverses your impending dementia.  If you really are in the beginning stages of dementia, consult a good doctor and don’t buy stuff you see advertised heavily on Fox News Channel. The one that comes to mind is the jellyfish thing. We won’t mention the name because we are adverse to ugly tweets and lawsuits. If you are rich and healthy, give it a shot. Try ingesting strange things into your body to see how it works. You will be doing a clinical study with N=1.

Another word you should know, also defined on Wikipedia, is xenobiotic: “A foreign chemical substance found within an organism that is not normally naturally produced by or expected to be present within.” Drugs are xenobiotics as are many substances from so called natural supplements. Many things in food are xenobiotics. How your body processes these foreign substances and renders them harmless is very complex and not everyone handles them the same. Some people cannot handle gluten or lactose.

The next thing to learn about if you want to mess around with stuff to make you smart is the body’s cytochrome P450 mixed-function oxidase system.  It’s the body’s way of taking care of a lot of stuff the digestive tract, or other mechanisms didn’t handle completely. The P450 system is determined genetically. Something that you can handle well may kill someone else.  You can have genetic testing to see which isoenzymes you produce and how active they are, but it is largely a waste of time and money at this point.  Doctors deal with it empirically by trial and error, trying different drugs and adjusting the doses.

Let’s look at cytochrome P450 1A2, abbreviated CYP1A2. Its activity in the body helps detoxify xenobiotics such as caffeine, and acetaminophen.  Acetaminophen can kill you and you don’t know what a lethal dose is for you until you try it. Even then it may depend on what else you have been eating, if you are dehydrated, or if you eat your vegetables. Caffeine, like acetaminophen, can kill you and the lethal dose will vary. The median lethal dose (LD50) in humans is estimated to be 150-200 mg per kilogram of body mass.  Don’t depend on this number. It only kills half of those who overdose.

Back to nootropics, which we really never left:  Caffeine is a good one- pretty safe and a weak inhibitor and substrate of CYP1A2.  Some people can detoxify the stuff all day long and sleep like a baby. Others handle a cup in the morning. It’s not simply a matter of detoxifying it. Your genes determine sites in your body that it binds to, some well, others not so well. Boys don’t handle it as well as the ladies, generally.

What about modafinil?  It’s an inhibitor of CYP2C19, and inducer of CYP3A4 so if you are taking any drugs for therapeutic reasons you will probably mess up your treatment.  Besides it is a prescription drug and your doctor will need a diagnosis such as shift work-sleep disorder to feel good about giving you the prescription. But if you are old, have high blood pressure and are on a long list of drugs, the doctor will warn you about a myriad of drug interactions and suggest that you quit your night job.  Oh, but we forgot. You are over 50 and retired.  Right?

How does Donald (Trump) compare to Ronald (Reagan)?

Trump is a Different Man for Different Times

I arrived in sunny Southern California in 1963 eager continue my studies in physics after suffering two years of university in the frigid climes of upstate New York. I cannot tell you who was governor of New York during that time except to say that Nelson Rockefeller comes to mind and he had a wife named Happy.   Students then, at least the ones I knew, didn’t pay much attention to politics. When asked by a USC admissions director what I thought about the assassination of John F. Kennedy that occurred on the day of my interview, I carelessly replied that I didn’t think it made a lot of difference. Luckily for me he was an Orange County Republican and he decided that I belonged at USC.

In those days, USC was a safe place for complacent Republican sympathizers.  Occasionally a professor would ask uncomfortable questions about why Ronald Reagan was qualified to be governor. The safe answer was, and it turned out to be truer than anyone imagined, that Reagan knew how to choose smart people to actually run the government. Reagan is now widely acclaimed as the great communicator. He apparently was good at negotiating with dangerous world leaders as his legacy attests. But most of all, he surrounded himself as governor of California, and later as President, with very smart people, good people, moral people, and he left the country in the safe hands of his Supreme Court appointments.

The reason for the above background is to demonstrate that I was a witness to the Reagan Revolution so it is part of me. I watched Ronald Reagan in public life for 16 years. In spite of Reagan’s desire to cut the size of the federal government, split government substantially limited his agenda. He excelled in foreign affairs but his domestic agenda was stuck in the Great Society.

Donald Trump is no Ronald Reagan. I miss the affable Reagan smile and easy retort.

So how does Ronald compare to Donald?  So far it is too early to judge although everyone is anxious to do so.

The thing that immediately comes to mind is the Internet.

Reagan had television, a limited universe of talking heads, newspapers whose political biases were tame but well known, and a bunch of news magazines that were still able to turn a profit. The volume of information was manageable.  Narcissism was a word used by psychologists. People took pictures of OTHER people and sent the film off to be developed.

With the Internet, the volume of information has reached astronomical heights and its dissemination is cheap. One can conclude from the laws of supply and demand that political opinion has depreciated to the point of being virtually worthless. News outlets publish trash on page one, and later rescind it on page 6 with no apology.   On the ropes now is Time Magazine!

Is President Trump is a narcissist as the selfie crowd and a bunch of disgrundled psychiatrists are fond of proclaiming? A good argument can be made that a lot of psychiatry and clinical psychology is not based on solid science. Medicine is based on chemistry,  biology, and physics. Medical research, experimental, clinical, and epidemiological, rely on hard data that are evaluated mathmatically for statistical significance. The so-called soft sciences, anthropology, economics, epidemiology, geography, policy, psychology, and sociology may use scientific methods of inquiry but their discipline identifies better with scholars in the humanities. Narcisism only exists as a medical diagnosis because of the profoundly chaotic state of medical practice in the western world. DMS-5 (Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition) is an example of the medical/government complex inventing diseases to treat. Narcissism is one such invented disease and would be better characterized as Greek mythology.

Political acrimony is either at an all time high or we just know about it because of the Internet and its handmaiden, cable news. A 24-hour news cycle repeats the same lame stories as if by repetition they will achieve credibility.

So far Donald Trump appears to be choosing good people, at least one great new Supreme Court justice, and he is slowly filling the ranks of circuit judges. Hopefully he will get it right.  Some of his excellent cabinet people are quietly laying the groundwork for the revolution Reagan was unable to complete.

In the meantime my European friends are turning their sophisticated noses up at our gaff and twitter prone President who is breaking all the rules of political correctness.


Melania, we’re out of toilet paper. Bring me some more international agreements.


The above cartoon appeared in the March 6, 2017 online issue of OBV Online and is used here as an illustration of German sentiments. The caption on the OBV Website reads, “International agreements are taken very seriously in the White House. Cartoon: Bengen”