The Divine Right of California Government?

“We do not look to the Constitution to determine whether the legislature is authorized to do an act, but only to see if it is prohibited.” – Judge Kenneth Yegan. Concurring: Judge Steven Perren and Principal Judge Arthur Gilbert of the California Court of Appeals (Boyer v. Ventura County et al No. B289919 Second Appellate District Division Six – Published March 18, 2019)

The United States Constitution was written by men who believed that government is evil. No doubt about that. But in their view, The People also believed government to be a necessary evil. And so the Framers of the Constitution thought the best way to restrain that evil was via a carefully crafted, written Constitution based on the premise that all men are created equal (under the law) and are endowed by their creator with certain unalienable rights among which are life, liberty and the pursuit of happiness.

These Founding Fathers or “Framers” as they are often referred to today, created many structural impediments to the newly formed nation reverting to a monarchy or becoming a dictatorship as befell ancient Rome.

Stalin - 1915
Stalin – 1915

One of these structural impediments was civilian control over the Army and Navy and that control would not lie entirely in the hands of one man (the President) because the President could not spend a single penny on the Army or Navy that the Congress had not first authorized and the President may not spend a single cent to do anything the Congress has not first authorized the President to do with the money.

If a President got out of line then the Congress could cut off all funding to him and remove him from office.

And if somehow those structural impediments to tyranny failed, the United States Bill of Rights guaranteed the right of The People to keep and bear arms in order to overthrow that government as well as to defend their Republican state and local governments from any would be tyrant, foreign or domestic.

Curious that those who say that the Second Amendment is limited to militia members haven’t a clue as to who the members of the militia are (The People) or the primary purpose of enacting the Second Amendment (overthrowing governments).

Indeed, Article Four, section four of the Federal Constitution guarantees each state a republican form of government. The American people who created the Federal Constitution would not tolerate tyranny in any state, let alone tolerate a national tyrant.

The California Constitution is far broader in the scope of its individual rights protections than the Federal Constitution. According to the California Supreme Court, our California Bill of Rights extends beyond the limits of the Federal Bill of Rights except where the California Constitution explicitly limits the right to coincide with the Federal right. For example, the California Constitution limits the exclusionary rule (which isn’t technically a right) when the government violates either the Fourth Amendment or the Fourth Amendment analog under the California Constitution.

The exclusionary rule is the exception to the general rule that under the California Constitution, the rights of the individual exceed the individual rights guaranteed by the Federal Constitution.

For example, in 1923 the California legislature enacted a law which prohibited persons not born in the United States from possessing concealable firearms. In 1972, that law was struck down by a three-judge panel for violating the California Constitution and the 14th Amendment to the United States Constitution.

The Federal courts today are struggling over whether or not gun bans based on alienage are constitutional under the Federal Constitution. In January of this year, the 9th circuit court of appeals held that a ban on the possession of handguns and ammunition based on alienage is constitutional under the Federal Constitution.

Firearms bans based on alienage remain unconstitutional under the California Constitution, which is doubly ironic given that the California Constitution does not have an explicit right to keep and bear arms. What the California Constitution does have in Article 1, Section 1 of the California Bill of Rights is an explicit right to self-defense which is far more expansive than most of the Federal courts have interpreted the Second Amendment to the US Bill of Rights.

Or so that is how our California Constitution has been interpreted by the California courts over the years, which isn’t to say that California judges have lived up to that interpretation or meant what they said.

But pretenses are important. It is one thing to say that we are a nation in which the government is restrained by the rule of law and another thing to say the government can do whatever it damn well pleases.

There are three types of government. The first is totalitarianism. Under that type, there are no limits to what the government can do except for the limits the government imposes upon itself. That is the government that Judges Yegan, Perren and Gilbert embraced today and if not overruled, will have enforced upon us as well.

The second type of government is “limited government” as I earlier described and a theory which California (and Federal) judges have at least paid lip-service to in their opinions.

The third type of government shares the same premise as the second type of government, namely “government is evil.” Where it differs is in the belief that government is a “necessary evil.”

Anarchy, as the word was originally understood to mean in ancient Greek, is a society without rulers or government. There is no “necessary evil.” Under Anarchy, all government is an unnecessary evil.

Given that a society without rulers or government can only exist in a society which doesn’t want rulers or government and can only exist in a society where The People have the will and the means to prevent people from banding together as a government, anarchist societies do not exist. I wish they did but they don’t and they won’t until The People no longer view government as a necessary evil and The People have the will and means to prevent people from banding together as a government.

The choice since ancient times has been between a totalitarian government which has overwhelmingly been the “preferred” form of government throughout history and limited government, the latter being a relatively recent invention dating back to the second half of the 18th-century and invented in a sparsely populated region of the British Empire. An invention which hangs on today by a thread and even then mostly found only in theory, not in fact.

According to the unanimous three-judge panel in today’s decision, Boyer v. Ventura County et al., our Constitutions, both California and Federal, have granted the government absolute power to do anything government wants to do unless there is some explicit prohibition in the Constitutions prohibiting the government from doing whatever it wants to do.

Ironically, the lawsuit involved a fundamental principle of limited government which is civilian control of the government. Specifically, civilian control of county sheriff departments.

It is well established that police officers, and those who assist them in the performance of their duties, are agents of the state. Under our system of limited government, the state and its agents do not have individual rights.

The Framers of the California Constitution mandated the creation of certain government offices which were to be elected offices which any citizen of the State of California could seek.

The Offices of Governor and Lieutenant Governor are familiar to everyone. Want to run for governor (or lieutenant governor)? Simply be a citizen, meet the age and residency requirements, fill out some forms, collect the required number of signatures of your fellow eligible voters, pay the filing fee and congratulations, you are now a candidate.

Up until 1988, the same was true for anyone who wanted to run for County Sheriff. In 1988, a law enacted by the California legislature required that anyone who runs for County Sheriff must have first been a police officer before he can run for sheriff.

If the United States Congress were to enact a law saying that only active duty or retired generals can be elected President of the United States it would be struck down because the Federal Constitution spells out what is required for one to become President just as the California Constitution spells out what is required for one to become Governor (or a county sheriff) and neither the Congress nor the California Legislature may add conditions or qualifications not found in the Federal or State Constitution.

Such a law would also violate the bedrock principle of limited government which is civilian control of the government.

According to judges Yegan, Perren and Gilbert, the California legislature is free to pass a law which says that only persons who have previously been elected to a statewide office can become governor. Or that only persons who have been previously elected to a statewide office AND who stated their party preference as Democrat can become governor. Or that only persons who have been previously elected to a statewide office AND who stated their party preference as Democrat AND who had a parent who previously had been elected to a statewide office and who stated their party preference as Democrat can become governor.

This, by the way, was for all intents and purposes the same way hereditary monarchs were chosen. Its proponents were quite emphatic that this was a “rational” system of government because, after all, who better knows how to govern than the son (or daughter) of a King (or Queen) who was in turn the son or daughter of a king or queen (or sometimes niece, nephew or cousin to the King or Queen). Regardless, the monarch (who was The Government) ruled by divine right.

Or that was the theory until The People of England executed Charles the 1st of England in 1649. From that point on, English kings no longer ruled by divine right limited only by their self-imposed constraints. In 1689, the English would enact their own Bill of Rights which the American Bill of Rights would be based on a century later. I say, “based on” because we expanded on those rights. The English Bill of Rights applied only to Protestants, Catholics were expressly excluded from the rights we hold to be fundamental such as the right to keep and bear arms.

According to these three California judges, the government of by and for The People is the government of The People by the government and for the government.

Why? Because according to them the government can do whatever it wants to do unless the California Constitution expressly prohibits the Government from doing whatever it wants to do, which makes the whole idea of a constitutional republic meaningless as it is impossible to create a list of things the government may not do but very much possible to create a list of things government may do and limit the government only to those things expressly permitted.

I emailed the plaintiff, Bruce Boyer, saying that I hope he files an appeal with the California Supreme Court. Shortly before I filed this article I received a response from Mr. Boyer saying that he is going to take his case to both the California Supreme Court and the United States Supreme Court.

If the California Supreme Court upholds the decision then you will have all three branches of the California government in agreement that the California government can do whatever it damn well pleases. If the United States Supreme Court declines to hear the case then the decision of the California courts stand.

Which begs the question, “What would the Founding Fathers do if they were in our shoes?”


Court of Appeals decision

Judge Kenneth Yegan

Judge Steven Perren

Judge Arthur Gilbert