Constitution of California

The Constitution of California is the founding instrument of the Commonwealth of California, ratified on 5 November 2019 and in force from 1 July 2020. It replaced the Constitution of 1850, the constitution of admission, which had governed California for a hundred and seventy years and had been amended so often and so incoherently that by the end nobody could say with confidence what it required.

It is the newest polity constitution in the Realm and by a wide margin the most unusual. It rebuilt the executive, the legislature and the courts at once. It created the standing nomination, by which the Governor is named by the head of government, approved by the Crown and confirmed at a ballot of the electors, which is the only Crown appointment anywhere in the Realm submitted to a popular vote. It created the Court of Public Reasons, which reviews not whether a decision was lawful but whether the government adequately explained it. It created the Council of Regions, a second chamber in which the coastal metropolitan regions are outnumbered by design. It conferred a right to reasons enforceable by any person affected by a public decision, which is the most distinctive individual right in the Realm and the clause the rest of the Realm argues about. And it renamed the head of government, so that California’s Premier became its State Chancellor, because the word Premier had become the name of a particular man.

The occasion was a fire and a scandal that turned out to be the same thing. The Tehachapi fires of September 2015 killed a hundred and forty-one people and burned through country in which the prevention work had been contracted, paid for and not performed. The Ashworth Inquiry established that the contracts had been directed by a Premier to a utility whose board included his associates, that the Governor who might have checked him was his own former law partner appointed on his own recommendation, and, most consequentially of all, that no record existed anywhere in the government of California of who had decided any of it, or why.

That last finding is the constitution. Every distinctive feature of the instrument of 2019 is an answer to a sentence in Justice Ashworth’s report.

Status

The requirement

The Constitution of California is the instrument California holds under the Polity Instruments Act 1889, which requires every polity of the Union to hold a single written instrument providing for a legislature, an executive answerable to it and a judiciary, not inconsistent with the Charter of Union or the law of the Realm.

Replacing an instrument wholesale is contemplated by the Act and is rare. Section 4 requires a new instrument to be deposited with the Law Officers and section 6 permits a Law Officer of the Crown to certify a provision inconsistent with federal law, which strikes it out. California’s instrument was examined at length and passed entire, and the examination is itself the notable event: it is the most substantial exercise of the Act’s scrutiny function since it was enacted, it took eleven months, and the Law Officers’ published note on it runs to two hundred pages and is now the standard authority on what the Act of 1889 actually requires.

The note concluded that nothing in the instrument was inconsistent with federal law; that the confirmation ballot for the Governor was a matter for California, the Act being silent on how a polity constitutes its own head of state; and that the rights conferred by Article II, being additional to those of the American Rights Act rather than in substitution for them, raised no question at all.

Citation

The constitution is cited by Article and section, in the ordinary manner of the Realm’s instruments, which the convention adopted deliberately in preference to the continental style it had considered. A drafter’s note explains the choice: a constitution intended to be read by the people who live under it should be cited in the form those people already know from every other constitutional text in the Realm.

Two provisions are known by name rather than number. The right to reasons is Article II, section 4. The standing nomination is Article IV, sections 2 to 5, and is cited by its number more often than the right to reasons is, because it has never acquired a name anybody enjoys saying.

Relation to federal law

The constitution is subordinate to the Charter of Union and to the law of the Realm. Article I, section 4 says so expressly and in terms stronger than any other polity instrument uses, providing that where a provision of the constitution cannot stand with federal law the federal law prevails and the provision is to be read as if it were not there.

The clause was written by the convention on the Law Officers’ informal advice during the examination, and its purpose was to make the section 6 power unnecessary. It worked. California is the only polity to have written its own subordination into its constitution in order to avoid having it certified from outside, which the Realm’s constitutional writers regard as either exemplary or excessively clever depending on their view of California generally.

History

The Constitution of 1850

California was admitted as a Commonwealth in 1850, after a gold rush had turned a sparsely administered territory into a demographic and commercial force faster than any orderly process could manage, and the constitution of admission was written in ten weeks by men who mostly did not intend to stay.

It was a conventional instrument for its date. It provided a Premier answerable to a single-chamber Assembly of California, a Governor appointed by the Crown on the advice of the ministers of the Realm, and an elected judiciary. It contained a bill of rights of the period. It provided for amendment by a two-thirds vote of the Assembly and ratification by the electors, and, from 1911, by citizens’ initiative on the same terms.

The initiative destroyed it. A constitution amendable by petition and simple majority, in a polity of great size, wealth and organisational capacity, accumulated amendments at a rate no other instrument in the Realm has approached. By 2015 the Constitution of 1850 had been amended five hundred and twelve times, ran to a hundred and ten thousand words, contained provisions on the taxation of orange groves and the licensing of dance halls, and contained at least four pairs of provisions that could not be reconciled with one another. The Commonwealth’s own Legislative Counsel maintained a standing memorandum listing the contradictions, which by 2015 ran to thirty-one pages.

It also could not be repaired. Provisions inserted by initiative could not be removed by the Assembly, and an initiative to remove them required an organisation willing to spend money on tidying, which is not a thing anybody funds.

What the interior had

The Assembly was elected on population and the population was coastal. The Central Valley, the Inland Empire, the Desert Counties, the North Coast and the Sierra had been outvoted continuously for a hundred and forty years on water, on land, on power transmission, on roads and on fire, and had no structural remedy of any kind. The interior’s standing complaint was not that it lost votes but that it was not required to be consulted before losing them, and the complaint was accurate.

Nye and Bray

Curtis Nye became Premier of California in 2009 at the head of a coalition, and held office for seven years, which was long by California’s standards. He was effective, was widely liked, and understood earlier than his contemporaries that a Premier who controlled the Commonwealth’s procurement controlled a very large amount of money in an economy the size of a middling nation’s.

In 2011 the vice-regal appointment fell due. The Crown appointed on the advice of the ministers of the Realm, and the ministers of the Realm appointed, by an unbroken convention of a century and a half, whomever the polity’s Premier recommended. Nye recommended Harlan Bray, who had been his law partner for nine years and his chief of staff for two, and Bray was appointed.

Nothing about the appointment was irregular. Every step followed the practice of the Realm exactly, and that is the point the Ashworth Inquiry made about it: the constitution of 1850 contained no provision that Bray’s appointment breached, because it contained no provision on the subject at all. The Governor of California was whoever the Premier of California wanted, and had been since 1850, and nobody had previously wanted anybody objectionable.

The prevention contracts

From 2012 the Nye ministry directed the Commonwealth’s wildfire prevention programme through a framework agreement with Pacific Light and Power, the utility serving the southern interior, under which the utility undertook vegetation clearance along its own transmission corridors and was reimbursed by the Commonwealth.

The arrangement was defensible on its face; the utility owned the corridors and had the crews. Two members of the utility’s board had been partners in Nye’s firm. The framework was renewed twice without competition. Between 2012 and 2015 the Commonwealth paid for the clearance of some eleven thousand kilometres of corridor, and the clearance of about a third of it was never performed.

The Tehachapi fires, September 2015

On 9 September 2015 a conductor failed against untrimmed vegetation on a Pacific Light and Power transmission line in the Tehachapi range in extreme wind. The fire that followed ran forty kilometres in eleven hours, crossed into three counties, and killed one hundred and forty-one people, most of them in two foothill communities with one road out.

It was the worst fire in the Commonwealth’s history and it was not a natural disaster. The corridor where it started was on the schedule of works that had been paid for and not done.

The Ashworth Inquiry, 2016

The Commonwealth established a judicial inquiry within a month, under Justice Ilene Ashworth of the Supreme Court of California, and it reported in fourteen months. Its findings on the contracts, the utility and the ministry were severe and are not the reason the report matters.

What made the report a constitutional document was a finding it did not set out to make. Ashworth’s terms of reference required her to establish who had decided to renew the framework agreement, on what advice, and on what assessment of risk. She could not do it. Not because the records had been destroyed, and not because anyone had concealed them, but because they had never existed.

The last sentence is the most quoted in modern California and is carved into the wall of the Court of Public Reasons.

Nye resigned in November 2016 and was later convicted of offences relating to the framework agreement. Bray resigned the vice-regal office three days after the report and is remembered not as a wrongdoer but as an instrument, which is the more damaging thing to be remembered as.

The Assembly of Citizens, 2017 to 2018

Marguerite Quon became Premier in December 2016 at the head of a reconstruction coalition, on an undertaking that the constitution would be replaced and that she would not write it.

The instrument by which it was written is the most unusual constitutional process in the Realm’s history. The Assembly of Citizens consisted of two hundred and forty people chosen by lot from the electoral roll, stratified by region, age and sex, sitting for eighteen months, paid at the median wage of the Commonwealth with employment protected by statute, and served by a secretariat of drafters, a panel of expert witnesses and no politicians at all. Members of the Legislature were excluded from membership by the enabling Act, as were officers of the Commonwealth and persons who had held party office within ten years.

The Assembly did not draft. It sat, heard evidence, deliberated, and issued instructions, and the drafters produced text to those instructions and returned it for approval. The arrangement was proposed by the drafters themselves, who argued that a body of ordinary people would be captured by whoever held the pen if it were asked to work from a draft, and that the only way to keep authorship with the Assembly was to make the Assembly say what it wanted before anybody wrote anything.

Its proceedings were open, were broadcast, and were watched by an audience that surprised everybody. The Commonwealth’s broadcaster carried the deliberative sessions in full for eighteen months and the audience grew rather than declined, which the Assembly’s report attributes to the novelty of watching people change their minds in public.

Three of the instrument’s most distinctive provisions were the Assembly’s own and were resisted by the drafters. No leave requirement in the Court of Public Reasons, which the lawyers said would drown the court. The duty to assist an unrepresented applicant, which they said was not a judicial function. And the reasons requirement on citizens’ petitions, which they said would be struck down as a burden on the franchise. All three survived, none has been struck down, and the first two are now the features of the Court that Californians most often name.

The Assembly also refused things. It refused a schedule of exemptions from the reasons duty, which is why Article III, section 3 forbids exemptions absolutely. It refused regional assemblies with devolved powers. It refused to abolish the initiative, against the advice of almost every witness it heard, and instead narrowed and strengthened it. And it refused, twice, to make Spanish co-official. Where the Assembly rejected a draft it said why, and the drafters tried again. The record of instructions, rejections and reasons runs to nine volumes and is the fullest account of a constitution’s making that exists anywhere in the Realm, which is exactly the sort of thing the eventual constitution requires of everybody else.

The payment mattered and the Assembly’s own report says so. An unpaid assembly of eighteen months would have consisted of the retired and the wealthy, which is to say of the coast, and the Commonwealth would have got a coastal constitution.

The Convention and the ratification

A convention of a hundred and eighty delegates, elected by the regions, sat from September 2018 to June 2019 to settle the text the Assembly had approved. It changed a good deal of the drafting and very little of the substance, the Assembly’s instructions having been specific and the convention’s delegates having been elected on a promise to honour them.

The convention’s one substantial departure was on the Council of Regions, and it is described below, because it is the thing in the constitution most likely to fail.

The instrument was put to the electors on 5 November 2019 and carried by 64.8 per cent to 35.2, which is comfortable and was not close anywhere. It carried every region. The interior carried it more heavily than the coast.

The transition, and the problem of who comes first

The constitution created a chicken and an egg. The Governor is nominated by the State Chancellor; the State Chancellor is appointed by the Governor. Neither office can be filled first under the rules of the instrument, and the convention had to solve it in the schedules.

Schedule 2 provides that the Premier holding office at commencement shall make the first nomination, and that the person appointed State Chancellor on the first occasion shall be the Premier holding office at commencement. So the new constitutional order was begun by an officer it had just abolished, using a power it had just created, and the point was noticed at the time and defended on the only available ground, which is that somebody had to.

Marguerite Quon accordingly made the first standing nomination in the spring of 2020, and Adele Ferrar, a former president of the Commonwealth’s public accounts commission, was approved by the Crown and confirmed by the electors in June with 71 per cent. Quon became the first State Chancellor on 1 July 2020 by operation of Schedule 2, held the office for four months, and lost the general election of November 2020 to a coalition led by Tomás Reyes of the Liberal Federal Democrats.

The Commonwealth regards Quon’s defeat as the settlement’s first real test and its first pass. She built the instrument, was the first to hold the office it created, and was removed by it within four months, and nothing happened.

The text

The constitution is long, and the length is deliberate. A constitution built on the proposition that authority must document its reasoning cannot leave the procedures of documentation to statute, because a legislature that finds them inconvenient will amend them. Everything the convention regarded as load-bearing is in the instrument.

The text is reproduced in full below.

Article I: The Commonwealth

Section 5 separates the two seats on purpose. It is the only provision in the Realm that puts a polity’s head of state and head of government in different cities as a matter of constitutional requirement, and the Assembly’s instruction on it is unusually blunt: the offices had been occupied by two men who saw each other every day and shared a building, and the Assembly wished it to be inconvenient for a Governor and a State Chancellor to become friends.

The practical effect is six hundred kilometres and a formal correspondence. Governors and State Chancellors meet monthly and in writing, and the record of their meetings is published under Article III.

Article II: Rights and duties

Section 4 is the signature clause of the constitution and the most argued-about provision in the Realm. Its novelty is not that government must give reasons, which is ordinary administrative law everywhere, but that the adequacy of the reasons is itself a right vested in an individual and reviewable at that individual’s suit. A Californian who is refused a permit, denied a benefit, moved from a school, or has a road built past their house may require the government to show its working, and may take the government to court not for having decided wrongly but for not having thought.

Section 7 is the fire clause and is section 4’s twin: the Assembly’s instruction records that both were written for the same people. Section 5 was the interior’s and is described under Article IX. Section 8 was amended in 2024 to extend it to private service providers, which is the constitution’s most consequential amendment and was carried against the technology industry’s organised opposition.

Section 6 goes further than the federal Act, which frames housing as a progressive obligation of the Realm. California makes it a duty owed to a person and enforceable by that person, and the Commonwealth has lost eleven cases under it and complied with all eleven, slowly.

Article III: Public reasons

This is the Ashworth finding turned into law, and section 1’s last requirement, the name and office of the person who took the decision, is the specific answer to paragraph 12.4. Section 3 forbids the Legislature to exempt anything, which was the Assembly’s instruction after the drafters proposed a schedule of exemptions and were sent away.

Section 5 is the emergency provision and is the constitution’s weakest point in practice, as the section on failure below explains.

Article IV: The Governor

The standing nomination is sections 2 to 5, and its logic is entirely negative: it is built to prevent three things rather than to achieve one. A Governor appointed by the Crown alone would be an imposition on a polity that has never felt it owed the Crown its existence. A Governor elected in a contested partisan election would be a rival executive with a mandate. And a Governor appointed by the head of government alone would be Harlan Bray again.

The mechanism prevents all three because at each stage the actor can only refuse. The State Chancellor proposes but must produce somebody confirmable. The Crown approves but did not choose and cannot substitute. The electors confirm or reject a single named person and are never offered a choice between candidates, so there is no campaign between rivals and no mandate to be won.

Section 5’s last clause is the sanction and it is severe. A State Chancellor whose second nominee is rejected may not nominate again for the remainder of that Legislature, which means presiding over a caretaker head of state until the electors return a new chamber. It has happened once.

Section 6’s seven-year term is deliberately out of phase with the four-year Legislature, so that no Governor’s confirmation coincides with a general election.

Section 10 makes the Governor travel. The Governor sits at Los Angeles under Article I, section 5 and the Legislature sits at Sacramento, and section 10 requires the Governor to open each session there in person and to open in person the sittings the Legislature is obliged to hold at Eureka and at Los Angeles. The Assembly of Citizens was explicit about why: an office whose whole legitimacy comes from having been confirmed by the electors ought to be seen by them, and a head of state who never left the largest city would be the coastal Governor the interior had been warned about.

The second sentence is the more important one. The Governor may not address the Legislature on the policy of the Ministry, which forbids the speech from the throne that every other polity of the Realm has. A California Governor opens a session by declaring it open. There is no programme, because a programme would be the Ministry’s and would put an unelected head of state in the position of announcing it, and the Assembly regarded that as precisely the confusion of offices the constitution existed to prevent. The Ministry announces its own programme, to the House, in its own name.

Sections 11 to 13 are the succession, and they are separate from the caretaker provision of section 5, which the Commonwealth confuses constantly. Section 5 deals with a vacancy nobody has been able to fill because the electors have twice refused; sections 11 and 12 deal with a Governor who has died, resigned or become incapable. The first produces a caretaker certified by the Legislature and the Crown. The second produces an acting Governor who is a judge.

Section 12 is the delicate one. A Governor who is incapable and will not say so is a problem every constitution meets and few solve, and California solved it in the manner it solves everything, by requiring a reasoned public determination from a court on an application that a named person must make and defend. The State Chancellor may apply, which is obvious and which is also the danger, since a State Chancellor who wishes to be rid of a Governor has an instrument; the alternative route, seven members of the Council of Regions, exists so that the instrument is not the Ministry’s alone. Neither has been used.

Section 13 withholds the reserve powers from an acting Governor, so a judge acting as head of state may assent, may certify and may decline to certify, but may not appoint a State Chancellor, refuse a dissolution or dismiss a Ministry. The reasoning is that those three powers belong to an office confirmed by the electors and to no other, and that a constitutional crisis requiring their use during an acting governorship should be resolved by filling the office rather than by a judge.

The name is deliberately flat. Standing nomination is the drafters’ term and appears in the marginal notes rather than in the text, which nowhere names the procedure at all. The Assembly of Citizens had refused three proposed names on the ground that a mechanism with a memorable title acquires supporters and opponents of the title rather than of the mechanism, and its instruction was that the thing should be called whatever the lawyers found least interesting. It has accordingly never acquired a nickname, has no adjectival form, and is usually not named at all in ordinary speech, where Californians say simply the confirmation and mean the ballot rather than the procedure that produces it.

The Register notes that this is the only occasion in the Realm on which a constitutional convention has deliberately tried to make something forgettable, and that it worked.

Article V: The State Chancellor and the Ministry

The title is the constitution’s one purely symbolic decision and the convention explained it in terms. Two reasons were given and both are in the record. The word Premier had become the name of a particular man, and the Assembly’s instruction observed that a Commonwealth which had spent four years saying the word with contempt should not be asked to use it of its next honest officer. And Chancellor names an office that administers and answers, which the convention preferred to an office that leads, in an instrument whose whole subject is answering.

State rather than Commonwealth Chancellor was a drafting decision of no significance that has since acquired one: the interior prefers it, on the ground that Commonwealth is a coastal word.

Section 6 is the Fire Readiness Statement, and it exists because a hundred and forty-one people died in country whose prevention work had been paid for. Section 7 prevents the loop from closing in the other direction.

Article VI: The Legislature

Section 3 is the interior’s chamber and section 4 is why it may not last. Every part of California lies in a region, the coastal metropolitan areas included, so the Bay and the Southland hold fourteen of the forty-nine seats between them while containing something over half the Commonwealth’s people. The coast is outnumbered by design and knows it.

But the boundaries are in statute and not in the constitution, and that was the convention’s one substantial departure from the Assembly’s instruction. The Assembly had directed that the regions be named and bounded in the text. The coastal delegations refused to ratify a permanent settlement and the convention could not carry the instrument without them, so the boundaries went into ordinary law with the concurrence requirement of section 4 as the compromise.

Section 4’s protection is real and is not absolute. A law redrawing the regions needs a majority of the affected regions’ own Council members, which is a serious obstacle and not an insuperable one, since a region can be redrawn with the consent of the members of a region and members can be persuaded. The interior took a revocable chamber over no chamber, said so openly at the time, and has spent nine years pointing out that its constitutional protection sits in an Act of the Legislature.

Nobody has attempted it. Everybody knows it could be done.

Section 7 is the interior’s second protection and is stronger, because it is in the text: water, regional boundaries and local government powers cannot pass on the coast’s votes alone.

The sittings at Eureka and Los Angeles

Section 9 was the North Coast’s price, and it is the strangest provision in the constitution.

The Legislature of California must sit for not fewer than fifty days each year at Eureka, a town of some twenty-seven thousand people on the far North Coast, four hundred and fifty kilometres from Sacramento along a road that is closed by slides most winters; and for not fewer than twenty days at Los Angeles, where the Governor sits and where a quarter of the Commonwealth’s people live.

The North Coast is the smallest region by population, has the fewest Delegates, and had been the least visited part of California by its own government for a hundred and forty years. Its delegation to the convention of 2019 had watched the Central Valley extract an entrenched water article and the interior generally extract the Council of Regions, and calculated correctly that a region of its size would get nothing from a structural provision. What it asked for instead was attendance: not a power, not a veto and not a seat, but a hundred and sixty-nine legislators physically present in Eureka for ten weeks a year, together with their staff, the press that follows them, the ministers who must answer questions and the lobbyists who must follow the ministers.

The convention gave it, on the reasoning that the demand was modest and that the coastal delegations, having refused to entrench the regions, could not refuse this as well and keep the instrument. The Los Angeles sittings were added in the same week and for the opposite reason, as the Southland’s compensation for a chamber in which it holds fourteen seats of forty-nine.

The last clause of section 9 exists because the drafters expected the provision to be evaded. It forbids adjourning business out of Eureka or Los Angeles in order to avoid transacting it there, which is a rule against a practice nobody had yet attempted and which has since been the subject of two rulings of the Court of Public Reasons.

Article VII: The courts

Section 4 is the whole of the Court’s discipline and the reason it is tolerated. A court that could review the wisdom of decisions would be a second government; a court that reviews only whether the government explained itself is a court that makes the government think, and the distinction has held for nine years under considerable pressure.

Sections 6 and 7 are the Assembly’s doing and the drafters resisted both. No leave requirement means the Court cannot filter its own docket, which lawyers said would drown it and which has not, because most applications are answered by the authority producing the reasons it should have produced in the first place. The duty to assist an unrepresented applicant is unique in the Realm and has made the Court’s procedure unlike any other court’s: it sits without robes, takes applications on a form, and its judgments are written to be read by the applicant.

Judges are appointed, not elected. California abolished its elected judiciary in 2019, which was the only element of the old order the Assembly abolished without argument, on the ground that a judge who must be re-elected has a reason not to quash the government.

Article VIII: The initiative

The initiative was narrowed in reach and strengthened in force, which is the constitution’s neatest piece of work and its most counter-intuitive.

It was the initiative that destroyed the Constitution of 1850, so section 2 bars it from the constitution absolutely and for ever. Against that, section 4 makes an initiative statute nearly untouchable for five years and difficult afterwards, where under the old order the Assembly could and did repeal initiative statutes at leisure while being unable to touch initiative amendments. The old arrangement had it exactly backwards: the people could permanently alter the constitution and could not make a durable statute. The new one reverses both.

Section 3 is the joke everybody enjoys. A citizens’ petition must state its reasoning, its evidence, its alternatives and its regional impact in the same form the constitution requires of a minister, and the Court of Public Reasons rules on the adequacy before the petition may be circulated. The Assembly’s instruction on this is one sentence: if we are to require it of them, we may require it of ourselves.

The practical effect has been to reduce the number of initiatives from an average of eleven a year under the old constitution to about two, and to improve them.

Article IX: Water

Article IX was the interior’s price and it was paid in full. The Central Valley delegations to the convention made ratification conditional on an entrenched water article, and the coastal delegations, which had refused to entrench the regions, could not refuse this as well and keep the instrument.

Sections 3 and 4 are the substance. The order of priority in section 3 is justiciable, which means a Californian who cannot get drinking water may challenge an agricultural allocation directly, and section 4 destroyed the perpetual rights that had accumulated under the Constitution of 1850. The conversion of those rights into terminable allocations was litigated for four years, was upheld, and cost the Commonwealth a great deal in compensation.

Whether it works is the subject of the section below. It is at least the case that California now knows who has its water and for how long, which under the old constitution it did not.

Article X: The Indigenous nations

The nations are not parties to the constitution, which distinguishes California’s instrument from the March Charter of 1884, a three-party instrument sealed between the Crown, the settlers and the nations. California’s Article X was negotiated with the nations over fourteen months and consented to by them, and they declined to become parties.

Their stated reason is in the record and is the reason the Article is drafted as it is: a party to a constitution is bound by it, and the nations were not willing to be bound by an instrument that might be read as settling their claims. Section 2 exists because they asked for it, and it does the opposite of what a settlement does. California acknowledged the wrong in section 1 and was refused the discharge that usually accompanies an acknowledgement.

The Register notes that this is the correct outcome and an uncomfortable one for the Commonwealth. California’s Indigenous history under Spain, Mexico and then the Realm is among the worst on the continent, involving killing organised and paid for by public authority within the memory of the polity’s own institutions, and section 1’s phrase has profited from the denial of it was written by the nations’ negotiators and accepted without amendment.

Section 3’s consultation duty is the operative provision and it works through the reasons machinery rather than through a veto, which the nations accepted as second best and said so.

Article XI: Local government and the regions

Section 3 is worth noticing for what it refuses. The regions are constituencies and not governments. The convention considered regional assemblies with devolved powers, and the Assembly of Citizens had instructed against them on the ground that California already had counties, cities and a Commonwealth and did not need a fourth tier, and that the interior’s grievance was about being unheard rather than about wanting to govern itself separately.

Section 4 is the provision that has done the most work in ordinary life, because it means a city council, a school board and a water district all owe the duty to give reasons and the right in Article II, section 4 runs against all of them. Most of the Court of Public Reasons’ business is local.

Section 5 was the counties’ price and section 6 was added in 2022 after the emergency provisions were found wanting.

Article XII: Amendment

The amendment rule is the direct answer to five hundred and twelve amendments. Two thirds of both chambers is a high bar; the double majority in section 2, requiring approval both overall and in a majority of the regions, means an amendment cannot be carried on coastal votes alone; and section 3 imposed a five-year moratorium on the four Articles the convention regarded as the settlement itself.

The constitution has been amended four times in nine years: in 2022, to add Article XI, section 6 on emergency direction of local authorities; in 2023, to amend Article VI, section 4 to add the concurrence requirement, which was itself the interior’s response to a redistricting proposal that was withdrawn; in 2024, to extend the data right in Article II, section 8 to private service providers; and in 2026, on a technical matter of judicial pensions.

Four amendments in nine years against five hundred and twelve in a hundred and seventy. Californians are pleased with this and it is early.

The Schedules

Schedule 1 is the transitional provision for the courts and the continuation of the law of the Commonwealth. Schedule 2 is the transition described above, under which the last Premier made the first nomination and became the first State Chancellor. Schedule 3 names the Indigenous nations to which Article X applies, lists forty-one of them, and provides that a nation not named may apply to be added and that the omission of a nation is not evidence of anything.

The standing nomination in practice

The three confirmations

Three Governors have been appointed under the constitution and two confirmations have been held.

Adele Ferrar was nominated by Marguerite Quon in April 2020 and confirmed in June by 71 per cent on a turnout of 44. She had been president of the Commonwealth’s public accounts commission, had no party history, and was confirmed by an electorate that had spent four years being told what an unaccountable government looks like. Her seven-year term ran to 2027 and is generally judged a success: she certified, she assented, she said nothing publicly on a contested question, and nobody at any point suggested she was anybody’s creature. The Commonwealth got precisely what the mechanism was designed to produce.

Her successor is where the trouble began.

The Joint Convention of 2027

Diane Mukherjee, State Chancellor since 2025 at the head of a Labour-led coalition, nominated in February 2027 a former minister of her own government who had left the Ministry eight months earlier. The nomination was eligible, was properly made, and was approved by the Crown without difficulty, the Crown’s function under section 3 being certification and not judgment.

The electors rejected it in April by 57 per cent to 43. The campaign against it was run by the opposition parties and by three of the interior regional parties, and its whole argument was one sentence: that a Governor who had sat in the Chancellor’s cabinet eight months earlier was Harlan Bray with better manners.

Mukherjee nominated again in June, this time a retired judge with no political history at all, and the electors rejected the second nomination by 52 to 48. The second campaign was not about the nominee. It was about whether a State Chancellor who had misjudged the first nomination should be permitted to recover from it, and the opposition said so openly.

The Joint Convention met in July 2027 under Article IV, section 5. The Legislature and the Crown jointly certified Nathaniel Cruz-Bowen, the Chief Justice of the Supreme Court of California, as caretaker Governor. Mukherjee could make no further nomination during that Legislature, which was due to sit until 2029.

The caretaker held the office for thirteen months. In March 2028 the coalition’s junior partner withdrew over the water budget, Mukherjee lost a vote of confidence in the House of Delegates, and she advised a dissolution rather than resign. The general election of May 2028 returned her coalition with a smaller majority, and the new Legislature freed her to nominate again. Her third nominee, Teresa Marchetti, a former director of the Commonwealth’s emergency service who had run its response to the fires of 2020 and had never belonged to a party, was approved by the Crown and confirmed by the electors in August 2028 by 61 per cent to 39, on a campaign that both sides agreed was about the nominee. Cruz-Bowen returned to the bench the next day.

The episode is the most serious constitutional event since ratification. The question it raised, that a confirmation ballot is the only Commonwealth-wide vote between general elections and can be turned into a referendum on the State Chancellor, is not resolved, and the dissolution that ended it was an accident of coalition arithmetic rather than a remedy.

What the Joint Convention exposed

The convention of 2019 designed the standing nomination to prevent Crown imposition, partisan capture and ministerial ownership, and gave no thought to the possibility that the confirmation ballot would itself become partisan, because the mechanism was built on the assumption that an electorate offered a single name with no alternative would judge the name rather than the government.

That assumption held once and then failed. There is no rival candidate in a confirmation ballot, but there is a State Chancellor who can be embarrassed, and the opposition parties discovered in 2027 that a confirmation is the only Commonwealth-wide vote between general elections and is therefore the only opportunity to inflict a defeat on a sitting government. The second rejection was a vote about Mukherjee and not about a retired judge whom almost nobody could identify.

The result is a head of state certified by a Legislature and a Crown rather than confirmed by the people, which is the outcome the mechanism was designed to avoid, produced by the mechanism designed to avoid it. Cruz-Bowen was also the Chief Justice throughout, which the constitution does not forbid and which nobody had thought about.

Nothing in the article should be read as suggesting this is settled. The 2029 election will produce a Legislature that can nominate again, and what happens then is the live question in California constitutional politics.

The Court of Public Reasons in practice

Vidal, 2021

The Court’s founding case arose from an application by a woman whose road had been closed.

Ynez Vidal kept a small business at the end of a canyon road in the northern interior which the Commonwealth’s transport department closed to through traffic on fire-safety grounds, ending her trade. She did not say the closure was unlawful and she did not say it was wrong. She said that the department had given as its reasons a form of words identical to the form of words it had used for eleven other closures, that no evidence specific to her canyon appeared anywhere, and that she was entitled under Article II, section 4 to be told why her road had been closed.

The Court agreed, and the judgment is short. Reasons which would serve equally for any decision of the same class are not reasons for the decision actually taken; the requirement is not that an authority produce a document but that it demonstrate it applied its mind; and an applicant who shows that the same words were used elsewhere has raised a case the authority must answer.

The department produced fresh reasons within a month, on evidence specific to the canyon, and closed the road again. Vidal lost her business.

Vidal is therefore the case that defined the Court and its limits at once, and Californians cite it for both. It established that formulaic reasoning is no reasoning. It also established, as clearly as anything could, that the Court cannot give an applicant what she actually wants, because Article VII, section 4 forbids it to consider whether the closure was right.

The docket

The Court receives about eleven thousand applications a year and decides about four hundred. The gap is the constitution working rather than failing: most applications are answered by the authority producing adequate reasons before a hearing, which is the outcome Article III intends, and the Court’s own annual report treats the withdrawal rate as its principal measure of success.

Most of its business is local. School boards, planning authorities, water districts and city councils generate the great majority of applications, because Article XI, section 4 makes them public authorities and because those are the decisions that touch people. The Court’s most-cited body of work is not about ministries at all; it is about permits, exclusions, closures and refusals.

What has changed in the administration

The effect most often cited in California is one that never reaches the Court. The administration writes differently now. Officers draft reasons contemporaneously because a decision without a record is voidable under Article III, section 4; they name themselves because section 1 requires it; and they record alternatives because a challenge will ask for them.

Senior officials interviewed for the Legislature’s five-year review said, with striking consistency, that the change was less about the Court than about the name. An officer who must sign a decision thinks about it differently from an officer whose decision emerges anonymously from a department, and paragraph 12.4 of the Ashworth report is on the wall of a great many California offices.

Two courts, and the line between them

California has a Supreme Court and a Court of Public Reasons, and the relationship between them was the drafters’ hardest technical problem.

The division

The Supreme Court of California is the Commonwealth’s ordinary final court. It decides whether an act was within power, whether a statute is consistent with the constitution, whether a right in Article II has been infringed, and every ordinary question of California law. The Court of Public Reasons decides one thing: whether the duties of Article III and the right in Article II, section 4 have been discharged.

The line sounds clean and is not, because almost every serious challenge to a government decision can be framed either way. A person aggrieved by a permit refusal may say the authority had no power to refuse, which is the Supreme Court, or that it did not adequately explain why it refused, which is the Court of Public Reasons, and the same facts support both.

How it was solved

Article VII does not solve it and the drafters knew they could not. What the constitution does instead is make the two courts’ remedies different and let the applicant choose. The Supreme Court can hold a decision unlawful and set it aside for good. The Court of Public Reasons can only quash for inadequate reasons, which leaves the authority free to decide the same way again on better reasoning, as the transport department did to Ynez Vidal.

The practical consequence is that the Court of Public Reasons is the cheap, fast, unrepresented person’s court and the Supreme Court is the expensive one. An application to the Court of Public Reasons needs no leave, no lawyer and a form. A challenge in the Supreme Court needs all three. This was not the design and is the design’s most important accidental effect: the Commonwealth built a specialist court for reasons and produced, in fact, the court that ordinary Californians use for everything, whether or not reasons are really their complaint.

The friction

The two courts have differed twice in ways that mattered.

In 2023 the Court of Public Reasons quashed a water allocation for inadequate reasoning; the Water Commission remade it identically on fuller reasoning; the Supreme Court then held the remade allocation unlawful on a ground the first court had no jurisdiction to consider. The sequence took four years and the Commonwealth’s own law officers described it publicly as absurd.

In 2026 the Supreme Court held that the adequacy of reasons is capable of being a question of law, and therefore that it may itself consider reasoning where reasoning is relevant to lawfulness. The Court of Public Reasons has not contested this and the constitutional writers regard the position as unstable. A proposal to give the Court of Public Reasons an appellate route into the Supreme Court, or to merge the two, has been made in each of the last three sessions and has not been carried, chiefly because merging them would end the informality that is the specialist court’s whole value.

Nathaniel Cruz-Bowen, caretaker Governor from July 2027 to August 2028, was also the Chief Justice throughout, and whether he could lawfully be both was argued without being decided. Article IV, section 7 provides that the Governor shall hold no other office, and whether a caretaker certified under section 5 is the Governor for the purpose of section 7 was never tested, no person having an obvious standing to bring it. In practice Cruz-Bowen did not sit judicially while he held the office and did not resign the Chief Justiceship, which satisfied nobody and offended no one enough to litigate, and the question lapsed when he returned to the bench.

It produced a further oddity that the drafters did not foresee. Section 11 names the Chief Justice as the person who acts as Governor if the Governor dies, and for thirteen months the Chief Justice was the Governor, so the first-named successor to the office was the person occupying it. Had Cruz-Bowen died in that time the constitution would have fallen to the second limb of section 11 and the next most senior justice, which works, and which nobody had thought about until a constitutional writer pointed it out in 2027.

The Council of Regions in practice

The Council has worked, and worked better than its designers expected.

Its effect is not that the interior wins votes; on most questions it does not, and the House of Delegates holds confidence and supply. Its effect is that the interior must be dealt with before a bill moves, because Article VI, section 7 gives the Council an absolute concurrence on water, on regional boundaries and on local government powers, and because a Council that can delay everything else has to be negotiated with even where it cannot defeat.

The consequences show up in coalition-building rather than in divisions. A State Chancellor who cannot assemble interior regional support faces a permanent governing difficulty, and every ministry since 2020 has included at least one interior regional party. The regional parties have accordingly acquired an influence out of proportion to their vote, which is exactly what the mechanism was for and which the coastal parties resent in the terms parties always use for a system that disadvantages them.

And it rests on a statute. Article VI, section 4 leaves the regions to ordinary law, subject only to the concurrence of the affected regions’ own Council members, and the interior has never stopped saying so. A redistricting proposal in 2022 that would have divided the Central Valley between two regions was withdrawn within six weeks under a degree of political reaction its sponsors had not anticipated, and the amendment of 2023 that added the concurrence requirement was the interior’s answer to it.

The protection is now real, is stronger than it was, and is still not in the constitution. That is the most likely place for the settlement of 2019 to come apart, and every constitutional writer in the Realm who has looked at California has said so.

The Eureka sittings in practice

The provision has worked, has been resented, and has changed Eureka more than it has changed the Legislature.

What actually happens

The Eureka session runs for ten weeks from late April, when the road is reliably open. The Legislature sits in a chamber built for the purpose in 2021 and finished late, adjoining the county courthouse; the Ministry moves with it, which means a minister answering questions in Eureka must have the department behind them, so the departments move too, or send enough of themselves to matter. The press corps follows. So do the lobbyists, who complained about it more loudly than anybody and adapted within two years.

The Los Angeles sittings are four weeks in the autumn and are much less disruptive, Los Angeles being large enough to absorb a legislature without noticing and close enough that nobody must be housed.

What it did to Eureka

A town of twenty-seven thousand receives, for ten weeks a year, something over two thousand people who must be housed, fed and moved about. The first session in 2021 was a shambles: there was not enough accommodation, prices trebled, local tenants were displaced by short lettings at legislative expenses rates, and the Commonwealth was obliged to intervene in a housing market it had itself broken.

What followed is the part the North Coast counts as the win. The Commonwealth built accommodation, which is used by the town for the other forty-two weeks of the year; it improved the road, which the region had been asking for since the 1950s; it extended the airport; and it laid fibre, because a hundred and sixty-nine legislators discovered in their first week what North Coast connectivity was actually like. The region got in six years the infrastructure it had failed to obtain in a hundred and forty, and it got it not by winning votes but by making the people who allocate money live there.

Eureka’s own view, recorded in a much-quoted submission to the Legislature’s five-year review, is that the constitution did not give the North Coast a voice. It gave the North Coast an audience, which the submission says is better, because a voice can be ignored by people who are not in the room.

The resentment

The complaint against section 9 is that it is expensive, that it is inefficient, and that ten weeks in a small town is a poor use of the time of a legislature governing thirty-nine million people. All three are true. The Legislature’s own costing puts the annual expense at something over four hundred million pounds, which is a great deal of money to spend on being somewhere.

The subtler complaint is that the Eureka session has become the session in which unimportant business is done. This was the evasion the drafters anticipated in section 9’s last clause, and it has been attempted twice. In 2023 the Court of Public Reasons held that a Ministry which had deferred every significant bill out of the Eureka sittings had adjourned business for the purpose of avoiding them, and quashed the reasons record supporting the legislative timetable. In 2026 it held the same of a committee schedule. Neither ruling forced a bill to be passed at Eureka, the Court having no such power, and both changed the timetable in the following year.

Nobody proposes repealing section 9. Repeal would require an amendment, an amendment requires a double majority under Article XII, section 2, and a majority in a majority of the regions cannot be had for taking the Legislature away from the North Coast.

Water in practice

Article IX has produced the clearest measurable change of anything in the constitution and the least gratitude.

The conversion of perpetual rights into terminable allocations under section 4 was the largest transfer of property interests in the Realm since Reconstruction. It was litigated to the Royal American Supreme Court, which upheld it in 2024 on the ground that a polity may regulate a resource it holds in trust provided it compensates, and the compensation has cost the Commonwealth something in excess of nine billion pounds over six years.

What California got for the money is knowledge. The Commonwealth now knows who holds its water, on what terms and until when, which under the Constitution of 1850 it did not, the allocations having accumulated by grant, prescription, statute and litigation over a hundred and seventy years with no register anywhere.

Section 3’s order of priority has been invoked twice in shortage, in 2022 and in 2026, and on both occasions agricultural allocations in the southern Valley were reduced to maintain domestic supply. The reductions were lawful, were upheld, and were experienced in the Valley as the coast taking water from farmers under a constitution the Valley had itself insisted upon. The interior’s price turned out to have a price.

The nations in practice

Article X’s consultation duty operates through the reasons machinery and its effectiveness is accordingly uneven. Where an authority is willing, the record of what a nation said and what weight was given to it is a genuine discipline. Where an authority is unwilling, the duty is discharged by a meeting and a paragraph, and the nation’s remedy is an application to the Court of Public Reasons under section 4 asking whether the consultation was genuine.

The Court has heard nine such applications and upheld six, which the nations regard as a better record than they expected and a worse instrument than they wanted. Their negotiators asked for a veto over decisions affecting sacred places and did not get it; what they took instead was section 2, which prevents anything in the constitution from being read as a settlement of their claims, and section 1, which is an acknowledgement without a discharge.

Several of the nations have laid reports alongside the Commonwealth’s under section 5, and those reports are the most quoted Indigenous documents in the Realm, chiefly for their consistent observation that a Commonwealth which has undertaken to record its reasoning has thereby created the first complete record of what it does to them.

Public reasons in ordinary life

The four tiers

Article III leaves the classes of decision and the degree of reasoning to the Legislature, subject to the prohibition on exemptions, and the Public Reasons Act supplies them in four tiers.

Ordinary Reasons attach to routine decisions and are brief: a paragraph, a named officer, a date. A refused parking permit, a licence renewal, a school transfer. They are produced at a rate of some millions a year and are the tier almost every Californian actually encounters.

Significant Public Reasons attach to policy decisions of consequence and require the evidence relied upon and the alternatives considered to be stated.

Major Public Reasons attach to major public programmes and require, in addition, a full evidence base, an analysis of alternatives and a regional impact assessment, together with a published dashboard tracking implementation against what was promised. The dashboard requirement is the Act’s own invention rather than the constitution’s, and the Court’s dashboard integrity standard exists because authorities were found publishing dashboards that did not correspond to what was happening.

Constitutional Public Reasons attach to decisions with constitutional implications and are subject to the fullest review. There are perhaps a dozen a year.

What it is like

The Californian experience of the constitution is not the Court and is not the tiers. It is that a letter refusing you something tells you who refused it, on what material, and what else they considered. This is a small thing in each instance and is the thing Californians name when asked what changed.

It has secondary effects that were not designed. The named officer receives correspondence, and sometimes abuse, and the larger authorities have had to make arrangements about it. The alternatives requirement has made it harder for an authority to pretend a decision was inevitable, which has increased the volume of complaint because people can now see the option they wanted was considered and rejected. And the dashboards have made the gap between what a government promised and what it delivered a matter of public record in a way no other polity’s arrangements achieve.

The burden is real and falls unevenly. A city with a reasons unit produces a compliant major statement as a matter of routine; a rural county with four planning officers produces one at the cost of everything else those officers might have done that month. Article XI, section 5 forbids the Commonwealth to require a function without providing the means, and the counties have used it, successfully, four times.

The Governor’s certification

Article IV, section 8 gives the Governor a certifying function under Article III, and it is the one substantive thing a California Governor does.

Before assenting to a bill the Governor certifies that the legislative public reasons record required by Article VI, section 8 exists and is adequate on its face. The certification is not a judgment on the merits and is not reviewable for its substance; the Governor may decline to certify, which returns the bill to the chamber, and the chamber may cure the defect and present it again.

Adele Ferrar declined to certify eleven times in seven years and was never overridden, because on every occasion the record was in fact defective and the Legislature preferred to cure it than to argue. The function is regarded in California as the vindication of the whole arrangement: a Governor with no party, no policy and no ambition, whose sole substantive power is to say that the government has not shown its working, is precisely the officer the mechanism was built to produce.

Language, and the silence

The Constitution of California says nothing about language, in a Commonwealth where a very large minority speaks Spanish at home and where the public reasons duty requires every authority to explain itself in language the affected person can understand.

The silence is deliberate and was arrived at twice. Co-officiality was proposed to the Assembly of Citizens in its sixth month and again in its fourteenth, and was refused on both occasions, and the Assembly’s stated reasons are recorded and are not the reasons an outsider expects.

The first was that the reasons duty had already done the work. Article II, section 4 entitles a person to reasons in language that person can understand, which is a duty owed to an individual rather than a status conferred on a language, and the Assembly concluded that an authority which must explain itself intelligibly to a Spanish-speaking applicant is under a heavier and more useful obligation than one which must merely publish a Spanish translation. Californian authorities now produce reasons in whatever language the affected person needs, including languages a co-officiality clause would never have named, and the Court has enforced this against authorities that offered English and a leaflet.

The second reason was blunter and is in the record without embarrassment: the Assembly was advised that a co-officiality clause would become the whole ratification campaign, and it did not intend to lose a constitution over a provision it had just decided was unnecessary.

The Register notes that the second reason is the one the Commonwealth’s Spanish-speaking organisations have found hardest to accept, and that their position, that a right exercised person by person is not the same as a status held by a community, is a serious one that the Assembly did not answer. It remains a live grievance and a live argument, and the Louisiane comparison is made constantly in California by people on both sides of it.

Evacuation and rehousing

Article II, section 7 is the fire clause. It confers a right to be evacuated from an area under order of evacuation and to be housed at the Commonwealth’s charge until able to return or resettled, and it exists because a hundred and forty-one people died in two foothill communities with one road out.

Its first limb has been straightforward: an order of evacuation now carries a duty to effect it, which has produced standing arrangements for people without transport, without mobility and without English, and the Commonwealth’s evacuation performance is measurably better than any comparable polity’s.

Its second limb is the more radical and the more contested. A right to be housed at public charge until able to return, in a Commonwealth with the Realm’s most acute housing shortage, is a very large commitment, and the fires of 2023 and 2027 have tested it. On both occasions the Commonwealth met it, expensively, by leasing accommodation at market rates in a market it had itself failed to supply, and on both occasions the arrangement was criticised for spending on emergency housing at prices its own housing duty under section 6 might have avoided.

The two sections are therefore in tension by design, and the Commonwealth’s critics have noticed that a constitution which guarantees housing after a fire and housing progressively otherwise has created an incentive that nobody would have written down deliberately.

The opening, and the succession untested

Article IV, section 10 has produced the shortest ceremonial occasion in the Realm. A California Governor opens a session by attending, declaring it open, and leaving, and may not address the Legislature on the policy of the Ministry. There is no speech from the throne. Adele Ferrar’s openings ran to under four minutes and the practice has not changed since.

The Commonwealth is quietly proud of this and the rest of the Realm finds it thin. The comparison is with the federal opening at New Westminster and with every other polity, where the Crown’s representative reads a programme written by ministers, and where the fiction that the programme is the Crown’s is understood by everybody and troubles nobody. California abolished the fiction on the ground that it was a fiction, and got a ceremony that is over before the visitors have sat down.

Sections 11 to 13 have never been used. No Governor of California has died, resigned or been declared incapable since 2020, which means the Commonwealth’s succession machinery is entirely untested, and the untested part that worries constitutional writers is section 12.

A declaration of incapacity requires the Supreme Court to make, publish and defend a finding about the health of the head of state, on the application of the head of government or of seven members of the Council of Regions, with the Governor entitled to appear. Every element of that is deliberate and every element of it would be brutal in practice. The State Chancellor who applied would be accused of a coup whatever the merits; the Court would be deciding a political question in medical clothing; and a Governor who contested it would do so in public, at length, under the constitution’s own rules about published reasons.

The drafters knew this. The Assembly’s instruction on the point is unusually short and says that a procedure of this kind should be painful, because a painful procedure is used only when it is necessary.

The right to reasons is the most discussed provision of any polity constitution in the Realm and the argument about it is federal rather than Californian.

The proposition on the table is whether Article II, section 4 ought to be national. Its advocates say the American Rights Act as extended in 1962 already binds every public authority in the Realm and that a right to reasons is the natural completion of it: a Realm which guarantees a hearing and a remedy but not an explanation guarantees the form of due process without its substance. The Liberal Federal Democrats have carried the proposal at conference three times and it appears in their programme.

The objections are practical and constitutional. The practical one is California’s own experience: forty-one-page statements, a consultancy sector, and a burden that falls hardest on the smallest authorities, which in a Realm containing polities of three Commons seats is a serious objection. The constitutional one is that California adopted the duty by a process no other polity has undertaken, with a citizens’ assembly, a convention and a ratification carried in every region, and that a duty of this weight imposed on the polities by federal statute would be exactly the imposition the polities’ own instruments exist to prevent.

The Realm’s settled position is to watch California. The Legislature’s five-year review of 2025 was read closely at New Westminster, the Law Officers’ two-hundred-page note is now standard reading, and both sides of the federal argument cite Vidal, which is the mark of a case that has not settled anything.

Comparison

California’s instrument is the newest of the Realm’s polity constitutions and sits oddly among them.

Against the Constitution of Massachusetts Bay, a royal charter of 1691 describing a government the Province no longer has, reconciled to reality by two and a half centuries of construction, California is the opposite case in every respect: it describes exactly the government it has, because it made it, nine years ago, on purpose.

Against the March Charter of 1884 the comparison is closer and more instructive, both being long, both containing a water chapter, both containing an Indigenous chapter, and both belonging to polities with real internal divisions. The difference is that Arizona’s nations are parties and California’s are not, and the difference was the nations’ choice in both cases and went opposite ways: the March’s nations took a seat at the instrument and accepted its binding, and California’s refused the binding to keep their claims open.

Against the Constitution of Ohio the comparison is the sharpest and is the one the Realm’s constitutional writers draw. Ohio’s instrument of 1803 is the proof that a right is worth the remedy attached to it: its eleventh section forbade legal disability and nothing else, its home rule article guaranteed municipal authority and provided no way to defend it, its education article imposed a duty its own court declared four times and could not enforce. California’s instrument of 2019 is the same proposition attempted from the other end. Every right in Article II has a remedy attached, a court with jurisdiction, a named respondent and a procedure an unrepresented person can use.

Whether that is the answer to Ohio’s problem or merely a more elaborate way of arriving at it is the question the Realm has been arguing about since 2020, and California is nine years old and Ohio is two hundred and twenty-five.

The afterlife of the old constitution

Repealing the Constitution of 1850 did not repeal the law made under it. Article I, section 6 continued every enactment in force, which was necessary and which left the Commonwealth holding a hundred and seventy years of statute much of which had been enacted to give effect to constitutional provisions that no longer existed.

The consolidation occupied the Legislature for six years and is not finished. Some five hundred Acts have been repealed as spent, several hundred more amended, and a standing commission continues the work. Provisions inserted into the old constitution by initiative, which had been beyond the Assembly’s reach for a century, became ordinary statute at the moment of repeal and could at last be amended, and about a third of them were repealed within four years.

The Commonwealth’s Legislative Counsel described the effect in the 2023 report in a sentence Californians enjoy quoting: that the Constitution of 1850’s most durable achievement had been to make its own worst provisions permanent, and that repealing it had done more tidying in four years than the previous eighty had managed.

Politics under the constitution

The instrument has changed how California is governed in ways the convention intended and in ways it did not.

Coalitions and the regional parties

The six parties of the Realm all contest California, and no one of them has come close to a majority in the House of Delegates since 2020. Government is coalition and has been throughout: Reyes governed from 2020 to 2025 with a Liberal Federal Democrat core and two interior regional parties, and Mukherjee has governed since 2025 with a Labour core, the Greens and one interior regional party.

The Council of Regions is the reason the regional parties matter more than their vote. A State Chancellor needs the Council’s concurrence on water, on regional boundaries and on local government powers under Article VI, section 7, and needs its forbearance on everything else, and the arithmetic of forty-nine seats across seven regions means the interior parties are always in a position to supply or withhold it. Every ministry since 2020 has included at least one, and the practice is now assumed.

The coastal parties’ complaint is the ordinary complaint of a majority disadvantaged by a design, and the ordinary answer applies: the design was ratified in every region, most heavily in the interior, and the coast voted for it too.

The Alternative for the Realm problem

The one party the constitution has genuinely disadvantaged is Alternative for the Realm, whose California base is among people who experience the procedural culture as a system that serves those able to navigate it.

The complaint is not frivolous and the article does not treat it as such. A constitution whose central instrument is a documented reasoning process, reviewable in a specialist court, is a constitution that rewards literacy, time, professional advice and the confidence to challenge an authority. Article VII, section 7 requires the Court to assist an unrepresented applicant, and does, and the Court’s own figures show that unrepresented applicants succeed at about half the rate of represented ones.

That gap is the sharpest thing anybody can say against the settlement of 2019 and it is said most often by the party its supporters least want to be agreeing with, which is a difficulty the Commonwealth’s politics has not resolved.

The permanent argument

California’s constitutional politics since 2020 has organised itself around a single question, which is whether the instrument is a success that needs protecting or an experiment that needs correcting. The Liberal Federal Democrats and the Greens hold the first position; Alternative for the Realm holds the second outright; Labour and the Conservatives are divided internally and manage the division by not raising it.

Because Article XII requires two thirds of both chambers and a double majority of the electors, neither position can prevail, and the constitution is therefore secure in a way its designers intended and its critics find intolerable.

What is working

Four things can be said with confidence after nine years, and the Legislature’s five-year review of 2025 said all four.

The administration writes differently. Contemporaneous records, named officers, stated alternatives. The review found the change most pronounced in mid-level administration, where a decision that would previously have emerged from a department now emerges from a person, and least pronounced at the very top, where ministers were already accustomed to being answerable.

The Court’s discipline is real and mostly invisible. Eleven thousand applications a year, four hundred decided, and the gap made up by authorities producing the reasons they should have produced. The withdrawal rate is the measure and it has risen every year.

The Council of Regions ended a hundred and forty years of the interior being unheard. Not of the interior losing, which it still does, but of the interior not being required to be consulted before it lost. The change is visible in coalition composition and in the survival of the 2022 redistricting proposal for six weeks.

The standing nomination produced a Governor nobody suspected of anything. Adele Ferrar’s seven years are the settlement’s clearest success, and her eleven refusals to certify are the clearest demonstration that a head of state with no party and no ambition can be given a real function and will use it.

Against these the review set the failures described below, and declined to strike a balance, on the ground that nine years is not long enough and that the instrument has not yet met an emergency.

What is failing

Legibility theatre

The complaint most often made inside California is that reasons are written for the Court and not for the public.

Article III requires plain language and Article II, section 4 requires language the affected person can understand, and both are complied with in form. What has grown up alongside is a professional practice of reason-drafting: specialist units in the larger authorities, a consultancy sector, precedent banks, and a house style that satisfies the Court’s standards of adequacy while communicating very little to anybody who is not looking for the standards.

A major public reasons statement now runs on average to forty-one pages. It states the evidence, connects it to the reasoning, identifies alternatives and assesses regional impact, and it is read in full by the applicant’s lawyer, the Court and nobody else. The Assembly of Citizens wanted a government that explained itself to ordinary people; what the Commonwealth has produced is a government that explains itself to a tribunal, in public, at length.

The Court is aware of this and has pushed back, most notably in a 2026 judgment holding that a statement whose length makes it inaccessible does not satisfy Article II, section 4 however complete it is. The judgment is right and has not yet changed the practice, because a short statement is easier to challenge than a long one and every authority knows it.

Confirmation politics

The second failure is the standing nomination’s, and it is described above. A mechanism built to keep the head of state out of partisan politics has produced the only Commonwealth-wide ballot between general elections, and the opposition has learned what to do with it.

Nothing in the text prevents this and no amendment has been proposed, because any amendment to Article IV would be moved by a government that had just been beaten with it and would be received accordingly.

Emergencies

Article III, section 5 allows a decision to be taken before its record is made, provided the record follows within seven days and states why it could not be made earlier, and this was the convention’s answer to the objection that a fire does not wait for documentation.

It has worked adequately and not well. The seven-day record is often thin, is sometimes reconstructed rather than recorded, and the Court has been reluctant to press on it for the obvious reason that nobody wishes to be the tribunal that punished an emergency manager for fighting a fire. The 2022 amendment adding Article XI, section 6 was occasioned by a flood in which nobody was sure whether the Commonwealth could direct a county at all.

This is the part of the constitution that has not been properly tested, because California has not had a disaster on the scale of 2015 since the instrument came into force. What the settlement of 2019 does under that pressure is not known.

The case against

There is a serious constitutional argument against the settlement of 2019, made by people who are not the losers of the scandal, and the Register reports it rather than resolving it.

The argument is that California has confused the record of a decision with the quality of it. The Ashworth finding was that nobody could establish who had decided to renew the framework agreement, and California responded by requiring that everything be recorded. But the framework agreement would have been renewed anyway, by a Premier with a majority and a Governor who was his partner, and the record would have shown it. What defeated accountability in 2015 was not the absence of documents but the absence of anybody willing to look, and the constitution of 2019 addresses the documents.

The argument’s second limb is about cost. A government that must document at this standard is slower and more expensive, and the burden does not fall evenly: a large coastal city with a reasons unit complies easily, and a rural county with four planning officers does not. The critics say the constitution has made government more legible to the professional and less responsive to everybody, and that the people it was written for are the people least able to use it. Vidal is their case too: she got her reasons and lost her road.

The third limb is that the settlement has never been tested by an emergency or by a bad government, and that nine years of competent administration in a polity chastened by a scandal proves very little about what the instrument does when somebody wants to get round it.

The defenders’ answer is that the administration writes differently now, that the Court’s withdrawal rate shows the discipline is real, that the Council of Regions has ended a hundred and forty years of the interior being unheard, and that a Commonwealth which has had one Governor rejected twice by its own electors is demonstrably not one in which the head of state is anybody’s instrument.

Both cases are strong and neither has yet had the evidence it needs. The instrument is nine years old.

Assessment

The Constitution of California is the most ambitious constitutional document in the Realm and the least proven.

Its achievement is that it took a specific and unusually precise finding of fact, that the government of a Commonwealth of thirty-nine million people had committed several hundred million pounds and a great many lives and left no account of itself, and built an entire constitutional order on the proposition that this must never be possible again. Everything in the instrument follows from paragraph 12.4: Article III from the absence of records, Article IV from the Governor who was a law partner, Article II section 7 from the two communities with one road out, Article IX from the water contracts, the Court of Public Reasons from a judge who could not answer her own terms of reference.

Constitutions are not usually this coherent, because they are not usually written in response to one document. That is the instrument’s strength and it is also the substance of the case against it, which is that a constitution built to prevent the last catastrophe is not thereby built to prevent the next one.

Its failures so far are the failures of a design that assumed good faith in the places it did not defend. The confirmation ballot was not defended against being used as a referendum on the government, and it has been. The reasons duty was not defended against being satisfied at forty-one pages, and it is. The Council of Regions was not entrenched, because the coast would not pay that price, and the interior’s protection accordingly sits in an Act of the Legislature that the interior watches every session.

What can be said after nine years is narrow and is not nothing. The administration of California writes down who decided what, and why, and signs its name. Whether that turns out to have been the important thing is a question the Commonwealth will answer the next time something burns.

Chronology

Trivia

See also

• Commonwealth of California, the polity this instrument governs
• Polity Instruments Act 1889, under which the instrument was examined and passed entire
• American Rights Act, which Article II supplements and does not replace
• Constitution of the March of Arizona, the three-party instrument whose nations are parties where California’s are not
• Constitution of Ohio, the designed constitution of 1803 and the opposite case: a right without a remedy
• Constitution of Massachusetts Bay, the Realm’s oldest instrument
• Earl Warren, Premier of California from 1943 to 1953, under the office’s former name