California’s Constitution Is For the People

This essay is the first in a 50-state series about the nation’s constitutions. We’ve asked an expert from each state to dive into their constitution, narrate its history, identify its quirks, and summarize its most essential components for our readers.  

California’s constitution defines the structure of the state’s government and protects many individual rights — including several that are not protected by the federal Constitution. It also covers other diverse topics that are not addressed by the federal Constitution, such as direct democracy, water rights, and labor relations. Because the federal Constitution reserves those topics for the states, they are often addressed in state constitutions.

California arguably has an ongoing constitutional convention in which its voters regularly approve amendments to its constitution. As a result, California has one of the longer state constitutions. In this respect, the California constitution is not unusual. As the charter for a government with plenary powers, state constitutions tend to be longer and more frequently changed than the difficult-to-amend federal Constitution, the charter for a government with only enumerated powers.

A brief history

California adopted its original constitution in 1849 through a convention in Monterey. Just one year earlier, gold had been discovered in California, triggering the historic gold rush and a rapid increase in California’s non-native population. That same year, Mexico ceded California to the United States when the Treaty of Guadalupe Hidalgo ended the Mexican-American War. At the direction of California’s temporary military government, convention delegates acted quickly, with the aim of swiftly presenting to Congress a request for admission as a new state. They succeeded, and California became a state in 1850.

Much of California’s original constitution was derived from the New York and Iowa constitutions. Yet that first constitution proved inadequate to meet the state’s rapidly changing needs. For example, it left the legislature far too free to impose high fees and taxes, spend with abandon, and grant itself excessive salaries. And soon after, California experienced explosive population growth, including an influx of immigrants from China, and rapid industrialization as railroad expansion shifted the state’s economy away from farming and mining. Reorienting the state’s economy and workforce in such a dramatic and sudden fashion caused great political strife and a surge in anti-Chinese sentiment — which spurred demand for a new constitution.

In response, California called a second constitutional convention in 1878 and adopted the currently operative 1879 constitution. Emblematic of the political conflicts in California at the time, the elected delegates jockeyed to implement their conflicting policy objectives. Anticorporate sentiments ran high among some factions and there was a heated debate over the Workingmen’s Party’s nativist labor protectionism in the face of immigration from Asia. These conflicts dragged out the nine-month convention and produced some racially discriminatory provisions that primarily targeted Chinese immigrants.

Since 1879, there have been numerous failed attempts to call a third constitutional convention. Instead, California has employed revision commissions and (more frequently) ballot initiatives to propose amendments to its constitution for voter approval. As a result, California’s current constitution has been amended over 500 times since its adoption, the second-most of any state constitution behind Alabama’s, which has over 950 amendments.

Californians enjoy expanded rights

The Declaration of Rights (California’s version of the federal Bill of Rights) found in Article I of the 1849 California constitution was mostly derived from New York’s constitution and remains largely intact today. Although the original rights protected in the 1849 constitution are still (for the most part) protected by the current constitution, California’s Declaration of Rights has been amended numerous times. As a result, it is much longer and more detailed than the Bill of Rights. Additional liberty guarantees are also scattered throughout the rest of the state constitution.

Many of the individual rights protected by California’s constitution appear to be similar in text and scope to the rights protected by the federal Constitution. For example, both constitutions have similarly worded restrictions on lodging soldiers in private homes. For these provisions, the scope of the right is likely to be the same under both constitutions.

But differences in phrasing between the California and U.S. constitutions, even if seemingly minor, have led California courts to construe the state constitution as being more protective of certain rights. For example, the California Supreme Court has found California’s free speech clause to be more protective than its federal analogue partly because of their textual differences. The seminal case expanding the scope of California’s free speech clause, Robins v. Pruneyard Shopping Center, resulted in a U.S. Supreme Court decision establishing that state constitutions may be more protective of individual rights than the federal Constitution.

Perhaps the greatest divergence has occurred in the realm of equal protection. Not only do California courts apply just two levels of scrutiny when analyzing an equal protection claim under California’s constitution, rather than the three applied by federal courts, they also recognize more suspect classifications than their federal counterparts — including gender, sexual orientation, and immigration status. As a result, any use of these classifications by a California governmental entity is far more likely to be invalidated than it would be in the federal system. Other examples where California’s constitution is more protective than the federal Constitution (due partly to minor wording differences) include California’s prohibition on cruel or unusual punishment — as opposed to the federal Constitution’s ban on punishments that are both cruel and unusual — and double jeopardy.

California’s constitution also contains express language protecting rights that have no parallel in the U.S. Constitution. For example, in 1972 California became the first state to include an explicit right to privacy in its constitution, which has been construed to provide greater protection for informational and autonomy privacy than the federal Constitution. Other examples include the right to reproductive freedom, the right to fish, the right to separate property, and the criminal victim bill of rights. In expressly recognizing certain rights, California’s constitution appears to impose an affirmative duty on the government to do something, with the right to a public education being perhaps the best example. California constitutional provisions defining water rights also arguably create a positive right by husbanding the state’s limited water supply to ensure that no Californian goes without water.

Yet California’s constitution is less protective of individual rights than the U.S. Constitution in at least one respect: it does not protect the right to bear arms. In fact, California’s constitution does not mention firearms at all.

Other unique constitutional provisions

California’s constitution is probably best known for its robust direct democracy provisions, which give California voters broad powers to adopt new statutes and constitutional amendments, repeal existing statutes, and recall elected officials. Added in 1911 in response to concerns highlighted by the Progressive reform movement about the influence of wealthy interests like the Southern Pacific Railroad, these provisions have fostered a barrage of voter-initiated political activity. Voters have used their power to enact statutes, amend California’s constitution, quash legislative enactments, and recall six elected state officials, including the governor in 2003.

California’s constitution is also known for its anti-tax provisions. Indeed, the state arguably sparked a nationwide wave of tax reform when it adopted Proposition 13 in 1978, which limited property taxes. The state constitution greatly limits the ability of California’s governments to impose taxes, fees, assessments, and charges. Besides Proposition 13’s cap on the property tax rate, voters have required the legislature to adopt new taxes by a two-thirds vote and prevented local governments from collecting funds from voters without their approval.

Governance under California’s constitution

Like most, if not all, state constitutions, California’s constitution establishes three branches of government (legislative, executive, and judicial) and focuses on restraining the legislature, which otherwise has plenary lawmaking power. As for the executive branch, California’s constitution establishes nine separately elected offices but only describes the powers of two in any detail: the governor and attorney general. This division of the executive branch’s power in theory strengthens the legislative branch, but the reality is more nuanced. For example, California’s constitution gives the governor the first and often the last word in the all-important arena of state finance. This is because the state constitution empowers the governor to propose the initial state budget and gives the governor the ability to exercise a line-item fiscal veto — unlike the president, who lacks such powers. And California voters may override legislative policy decisions through their direct democracy powers, which they do with some regularity.

California’s constitution also establishes several semi-sovereign state entities such as the University of California, the Public Utilities Commission, and the Board of Equalization (which oversees various state taxes). These entities are vested with a variety of regulatory, executive, and quasi-judicial powers. For example, the university has general immunity from legislative regulation, has the power to enact rules that are equivalent to state statutes, and has administrative authority to resolve internal disputes by applying university policies to particular cases.

California’s constitution also devotes an entire article to local government. Its provisions establish local governance by cities and counties and grant them certain express powers, such as the police power and the sole power to define local offices and regulate their elections. Given the state’s large geographic area and its wide variety of local governments, these provisions often provoke litigation between California’s state and local governments as they compete for power and control.

Finally, California has separate systems for selecting trial judges and appellate justices. Trial judges are either appointed by the governor or elected by the voters. Judges appointed by the governor must be on the ballot for the next gubernatorial election. Trial judges serve six-year terms, and their elections may be contested. By contrast, appellate justices are nominated by the governor and confirmed by the state’s Commission on Judicial Appointments. They serve 12-year terms and must be approved by voters through an uncontested retention election. The state has used this selection method, known as the Commonwealth Club plan, since 1934.

Changes to California’s constitution

All changes to California’s constitution must be approved by its voters. California’s constitution identifies two types of changes: revisions and amendments. Revisions alter a large number of existing constitutional provisions or the nature of the state’s basic governmental plan. All other changes are amendments. Voters may propose amendments, but not revisions, through the initiative process. The legislature, by two-thirds vote, may propose amendments or revisions for voter approval. And the legislature may, by two-thirds vote, ask voters to convene a constitutional convention to rewrite the constitution. Any constitution adopted at the convention must still be approved by a majority of voters.

The most recent amendment to California’s constitution enshrined the right to reproductive freedom, including the right to abortion and contraception, in response to the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization. On the ballot in November 2024 is a proposition to repeal a constitutional amendment that defined marriage as the union between one man and one woman — even though the U.S. Supreme Court invalidated that amendment in 2015. This new amendment, if passed, would have no immediate effect but would preserve the right of same-sex couples to marry in California should the federal high court one day reverse course.

Notable cases interpreting constitutional provisions

Perhaps the most well-known cases interpreting California’s constitution involve individual liberties construed by the state high court to be more protective than their counterparts in the federal Constitution. For example, in Robins, California’s high court rejected federal precedents construing the First Amendment and held that California’s free speech clause applied to privately owned shopping centers. After California’s high court invalidated the death penalty under the state constitutional prohibition of cruel or unusual punishment in People v. Anderson, California voters overturned that decision through a constitutional amendment. Several subsequent attempts to eliminate the death penalty have been rejected by California voters.

And in Raven v. Deukmejian, the California Supreme Court established that only California courts, and no other entity, may be given the power to interpret California’s constitution. In doing so, the state high court invalidated a voter-approved amendment that would have required California courts to follow U.S. Supreme Court precedents defining certain rights of criminal defendants.

More recently, California’s high court in In re Marriage Cases invalidated a statutory prohibition on same-sex marriage, finding that sexual orientation is a suspect class under California’s constitution. Although California voters overturned the state high court’s holding by initiative amendment, they did not overturn the court’s reasoning. And the U.S. Supreme Court subsequently invalidated that amendment by establishing a right to same-sex marriage under the federal Constitution.

But the most notable departure from federal precedent may be People v. Wheeler, where California’s high court held that juror challenges based on race violated the state constitution’s equal protection provisions — eight years before the U.S. Supreme Court did so.

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Since it was first adopted in 1849, California’s constitution has continually evolved, resulting in a rich and well-developed jurisprudence about its meaning. Those doctrinal developments have often placed California at the forefront of the movement to give state constitutions greater independence and effect. This will no doubt persist as voters continue to amend California’s constitution in response to the state’s changing needs.

David A. Carrillo is the executive director of Berkeley Law’s California Constitution Center and coauthor of the casebook California Constitutional Law.

Danny Y. Chou is a California Court of Appeal Justice, a former supervising staff attorney for a California Supreme Court justice, and coauthor of the casebook California Constitutional Law.

Suggested Citation: David A. Carrillo & Danny Y. Chou, California’s Constitution Is For the People, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Sept. 25, 2024), https://statecourtreport.org/our-work/analysis-opinion/californias-constitution-people.