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Nevada Constitution in need of repairs?
UNLV law professor points to flaws in legislative process as symptoms of state’s faulty foundation
Chris Morris
Tuesday, April 14, 2009 | 2 a.m.
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What: Lecture by UNLV law professor Tuan Samahon
Details: 7:30 this evening at the Barrick Museum Auditorium at UNLV; the event is free.
Article 16
Sec: 2. Convention for revision of constitution: Procedure. If at any time the Legislature by a vote of two thirds of the Members elected to each house, shall determine that it is necessary to cause a revision of this entire Constitution they shall recommend to the electors at the next election for Members of the Legislature, to vote for or against a convention, and if it shall appear that a majority of the electors voting at such election, shall have voted in favor of calling a Convention, the Legislature shall, at its next session provide by law for calling a Convention to be holden within six months after the passage of such law, and such Convention shall consist of a number of Members not less than that of both branches of the Legislature. In determining what is a majority of the electors voting at such election, reference shall be had to the highest number of votes cast at such election for the candidates for any office or on any question.
Picture this scenario: Nevada’s governor is incompetent and corrupt, failing to lead in a time of crisis while bringing disrepute on the state with his various embarrassments.
What could be done?
If the Legislature is in session, as it is every other year for 120 days, lawmakers could impeach the governor.
But for the other 83 percent of the time, the Legislature would have no recourse.
Under the state constitution, only the governor can call the Legislature into a special session, and it’s unlikely a sitting governor would call a special session for his own impeachment.
That flaw is one of many in Nevada’s constitution that should be remedied with a constitutional convention, according to Tuan Samahon, a UNLV law professor who will present a lecture on the subject tonight on the UNLV campus. Samahon is a conservative intellectual who speaks in well-crafted paragraphs, sounding like a man who just can’t abide bad constitutional law.
Nevada adopted its constitution nearly a century and a half ago and is one of few of states that haven’t opened up the document for major work, Samahon notes. The result is a constitution badly out of date in a state far more complex than it was in the 1860s.
Instead of undertaking a major revision of the constitution, Nevadans have approved constitutional amendments — 130 of them, nearly five times as many as have been made to the U.S. Constitution — often doing the bidding of narrow special interests rather than addressing broader constitutional issues.
A proper constitution should act as the rule book for making rules, in Samahon’s view.
He says Nevadans should look to the foundational ideas of the country’s constitution for clues to fixing our state’s founding document.
To wit: “You can’t make angels out of men,” Samahon said. In other words, people are fallible and will always try to grab more power, he said, echoing the ideas of the “Federalist Papers.”
Indeed, his constitutional ideas flow from those influential essays of 1787 and 1788 that helped to sell the country on the need for a strong central government.
One of their key insights is that “power is a corrupting influence and had to be controlled,” said Phil Bigler, a scholar of James Madison at James Madison University.
But how?
Government should use ambition to check ambition — create a balance of power among coequal branches of government, Samahon said.
At the federal level, a president chooses his cabinet but the Senate confirms the appointees. Congress passes laws, but the president can veto them.
Although the Nevada constitution creates a similar arrangement, our Legislature is too weak to act as coequal branch, Samahon said.
“The separation of powers relies on one branch of government being available to check another,” he said.
But Nevada’s Legislature isn’t available to check the other branches “because they don’t meet enough and can only meet at the whim of the governor.”
Samahon isn’t alone in his thinking. There have been various proposals this session to give lawmakers more authority, including the ability to call themselves into session, and for more oversight of a governor’s appointees.
With the limited power it possesses now, the Legislature has created what Samahon calls “unconstitutional workarounds” to protect some of its prerogatives. So, for instance, the Legislative Commission, which is made up of legislative leaders, meets to approve regulations created by the executive branch.
Samahon gave a very recent and relevant example.
When the subprime mortgage crisis began to unfold, the governor and his staff determined that the state wouldn’t have nearly as much money as originally believed. The governor said he could make necessary cuts to balance the budget without legislative approval.
Samahon said our flawed constitution had created a mess: “Now, we have dueling constitutional missions,” Samahon said. “You must balance the budget. You must fund education. And, the Legislature is supposed to pass the budget.”
Gibbons cut the budget unilaterally, claiming he had authority to do so under state statute. Samahon said he believes that statute is unconstitutional, because the Legislature is supposed to pass the budget, and its passage can’t be revoked by executive fiat.
“He’s changing the law but claiming he can do so by statute. Was the statute constitutional? Probably not,” Samahon said.
Later, state Controller Kim Wallin forced Gibbons to go to the Interim Finance Committee, which is made up of members of the Senate Finance and the Assembly Ways and Means committees, to make the cuts.
“Now you have one-third of the Legislature making law,” Samahon said of the special committee. “For many Nevadans, that’s taxation without representation.”
The courts also have outsized influence compared with the Legislature, Samahon said. The Legislature can impeach a corrupt or incompetent judge only when in session or when called to session by the governor. Legislators are also limited in their ability to overturn bad legal decisions with new laws, constrained again by their part-time status and inability to come into session at their own whim.
Nevada historian Michael Green said he sees merit in the idea of a constitutional update. The constitution was written in the middle of the Civil War — hence, “Battle Born” — based largely on a California constitution that was changed shortly thereafter.
The whole idea was weak government, and as times changed and a stronger government was needed, the governor filled in the vacuum because the Legislature met so rarely.
Green noted that Nevada’s founders didn’t envision a Gaming Control Board or Gaming Commission, so there was no confirmation process for gubernatorial appointments to those bodies.
The process for changing Nevada’s constitution, as in most states, is much easier than that of amending the U.S. Constitution. A ballot initiative that passes twice becomes a constitutional amendment; if the Legislature passes a measure twice and it clears the voters with a majority, that too becomes an amendment.
Samahon isn’t interested in a simple amendment or two. “We need to go in and really work on the plumbing,” he said.
The provision for a constitutional convention, laid out in Article 16, is a bit vague.
At least two-thirds of both houses of the Legislature have to approve the idea and put it to the voters, who then could approve it in the next election. The convention itself would take place within six months and have no fewer than 63 representatives. The Legislature, it seems, would have significant power to set the agenda and the mechanism for choosing representatives.
Samahon thinks the convention should be limited to a few specific articles and subjects. Otherwise, special interest activists, from the religious right to the marijuana left, could overrun the convention. There’s some question as to how and whether you could limit a convention. Samahon’s solution: a constitutional amendment creating a mechanism for a limited convention.
Though it should be limited, the time to do it has come, he said. In 2014 Nevada’s constitution will turn 150. “This is an opportunity for reflection, and to ask, ‘Does the constitution serve us well?’ ”
Discussion: 13 comments so far…
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Another non-Nevadan public servant trying to dictate what Nevada should do. The fact that he works for UNLV makes his opinion suspect as is the non-Nevadan status.
Yes, Clyde, and tell me how often, in your infinite Nevadan wisdom and intuition, you have pondered the Nevada Constitution?
Might Mr. Samahons current interest in the state constitution be driven by his own personal interests .. as in avoiding the looming 35% reduction in the budget for higher education and thusly reducing his salery?
As to Brings comment .. I don't know how often Clyde ponders .. but .. I know that April 15 makes for good pondering weather as I only need to write out one check instead of two,
And the other 364 days, pmmart, you can ponder your horrible traffic, atrocious medical care, subpar schools and university, near absence of public parks and how Vegas is generally a maw of anything good.
But hey! Your taxes are low!
Perhaps Perkins and Pmmart would do well to address the actual arguments. Attempt this act of abstraction: imagine a citizen, employed in the private sector, a "real Nevadan" (at least by your dim lights) who agrees with the professor. How then do your accusations defeat the call for reconsidering the Nevada Constitution? They don't. But you're afraid of losing that argument and that's why you don't engage it.
And in just what perfect paradise of a state do YOU live, bringtherain? And why do you care what we Nevadans do or don't do?
I'm a Nevadan. Always have been, always will be.
Regressive flat-earthers who don't think anything's wrong with Nevada aside from its too-high taxes drove me to exile. Now I live somewhere that charges me income tax, gives me the services society needs in turn, and would never elect a dim bulb like Jim Gibbons as governor, especially when given such a stark choice between Gibby and progressive Dina Titus.
But it's not home, and I still hope some day all the libertarians move to Wyoming or New Hampshire and finally let Nevada mature to the state it ought to be.
This is beautiful, has Tuan Samahon ever heard of elections? If you don't like the governor why not check with the people for a consensus, a vote.
Taun refers to the "federalist papers" - "the powers of government are limited and defined", James Madison
Should there be an emergency, I'm sure the legislature could call a session in the 245 DAYS in which they are not in session.
Gotjobs, under the Nevada Constitution, the legislature does not have the power to call special sessions. Therefore, if the governor does not call the legislature into session outside of the 120 days it is constitutionally empowered to meet, the legislature does not meet as a body. Yes, there are committees, but the legislature does not and cannot meet as a whole.
That said, the Nevada Constitution includes a provision for a recall. Why Democratic leaders did not try this, or at least attempt some sort of impeachment during either of the two sessions that have met while Governor Textmessage has been in office, is for them to explain.
Impeachment is so rare.
It would be great of a risk to have even a limited constitutional convention to empower the legislative branch to be more in session just to deal with the very rare possibility of impeachment.
I think is it a very bad idea.
The giving the legislative branch more session which just encourage them to pass more laws like banning lighters that look like toys.
Also of course, they would come up with more tax and spend ideas, too.
Also, the same thing can be accomplish by just passing an admenment. We do not need to have a constitutional convention unless the professor has an hidden agenda which seems likely.
This is a DANGEROUS proposition. Opening a Constitutional convention would also open Nevada's organic law to more tinkering by special interests like the anti-queers and others who want to turn this state into another theocracy.
Example: Article I ("Declaration of Rights," Nevada's Bill of Rights), Section 21. It's that stupid 2002 amendment: "Only a marriage between a male and female person shall be recognized and given effect in this state." This is in blatant violation of the original promise in Section 1: "All men are by Nature free and equal and have certain inalienable rights among which are those of enjoying and defending life and liberty..."
Translation: Section 21 alienated an identifiable class of the populace from the promise of Section 1, something forbidden by its own terms. Section 1 operates to prohibit majority tyranny. Yet mob rule corrupted it.
It's a very sad proof of why the Constitution should NOT be tinkered with!
I will say that I do not know that much about these subject im not a lawyer, but I like it here in nevada. but I will say these if the nevada state legislate would ever go full time like some large states already are, these state would end up like california overnight, 1 - huge deficit spending, 2 - out of control taxes 3 - A school board out of reach of parents authority over there kids education. 4 - gun control 5 - demand for social services going thur the roof 6 - the crime rate would triple 7 - and out of control fascist court system overseen by activist liberal judges 8 - out of control regulations on everything 9 - high energy cost 10 - half of the people in california would move here. I say keeping the government as small as possible will in the end allow us to avoid all of these.
Thats fine on keeping it low, but we have money issue right now. And what I like to see is one our elected officials offer to reduce their pay and hopefully others will follow suit. Instead of chopping the little guy , raising taxes, we need to start at the top and trim . But like I said I would like to see that. Instead of having everyone run stupid to cut costs by any means, I would be curious if they could all survice on 393.oo unemployment per week like we have to. They are just going to keep snow balling us, when we all have to work together and THAT includes them also.