Beware of legislation in the Florida Constitution

As Election Day approaches, voters should be wary of constitutional amendments placed on the ballot by special interest groups. These initiatives receive little more than superficial scrutiny, contain confusing language, lack necessary definitions, lead to unnecessary litigation, and invariably have unintended results. Voters should carefully examine the proposed language on the ballot.

I’ve written extensively about the problems with both specific changesand with the process of amending the constitution in general. This article focuses on the fundamental idea that our Florida Constitution is intended to provide the blueprint for our government and protect individual liberty, the separation of powers, and limited government. The Constitution was not written to provide special interests with a means to short-circuit bicameralism and presentation and smuggle their policy interests into our founding document.

Our written Constitution provides for limited government, separation of powers, individual liberty, and legislative legislation. The Constitution is a respected document that provides a blueprint for our government. Unfortunately, special interest groups dissatisfied with the legislature have attempted to convert the Florida Constitution into a seventh section of the Florida Statutes, which addresses mundane matters that are best addressed elsewhere. Such efforts weaken the separation of powers, endanger individual liberty, and put our Constitution up for auction to special interests outside the state.

Legislators usually practice bicameralism and presentation. In other words, most systems in the United States include a lower house, an upper house (commonly called the Senate), and an executive veto (held by the governor or president). These three different bodies debate, negotiate and compromise to achieve implementation. law after vigorous give and take. I have seen this process work, and it consistently produces a superior outcome (and a broader consensus) than any body acting unilaterally. Even good legislation is usually presented several times and is improved incrementally before it is finally adopted. Bad lawmaking results when this process is rushed, ignored or circumvented.

Special interest groups have used the ballot initiative process to short-circuit the checks and balances and purchase amendments to our Florida Constitution. First, such advocacy groups hire paid petition collectors, who have little knowledge of the policy issues, to trick passersby at courthouses and public events into signing petitions. Such groups have recently ignored laws passed over the past decade to regulate petition gathering. Once enough signatures are collected, a perfunctory vetting process is followed by a barrage of misleading ads, as we’ve seen in recent months.

I must be clear that this article is not an apology for politics as usual in Tallahassee. I have often been a critic of the legislature. I have refused to serve there any longer, at least in part, because of its weaknesses. The legislature is not perfect. Sometimes it fails to implement necessary reforms. Other times it goes too far based on real or perceived urgency to solve a serious problem. Whether the legislature has gone too far or not far enough is often a matter of perspective. However, it is precisely because of inevitable errors and disagreements in policy making that the legislature always reserves the right to further amend laws in the light of reason and experience.

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Legislation by constitutional amendment essentially prevents the legislature from tailoring policy based on experiences, preferences, or needs of the electorate, technological or demographic changes, or countless other developments that are impossible to predict, let alone enumerate. A general rule of thumb for voters is that they should carefully consider the merits of amendments that mainly concern the structure of government, while leaving policy issues, including the regulation of marijuana and abortion, to the legislature.

Whether voters realize it or not, Amendment 4 would undermine laws regarding ultrasounds and health and safety regulations on wait times. These laws have been enacted by elected representatives for decades. Many would likely be approved by the electorate if voted on individually. Whether or not the electorate believes that the Legislature has got the regulations perfectly right—we almost all agree that, for one reason or another, this has not been the case—it should not constitutionalize yet another flawed regulation, especially not when it so substantially conflicts with decades of legislation on the subject.

Voters may believe that the fact that the amendments appear on the ballot means that they have somehow been “approved.” The fact that the Florida Supreme Court allowed the change on the ballot is not an indication that this is a reasonable policy for Florida. The Supreme Court does not rule on the wisdom of an amendment. Instead, the court reviews an amendment to ensure it meets the technical requirements. In this case, the court limited its review to ensuring that the ballot summary was not misleading and that the amendment related to a single issue. (In my opinion, the court was wrong in approving the abortion amendment.)

Judge John Couriel, who allowed the amendment to be put to the vote, told the amendment’s opponents: “(You) say, ‘This is a wolf,’ and a wolf it may be. . . But it seems like it’s our job to answer whether it’s a wolf in sheep’s clothing. That’s all we can do.” Similarly, in discussing the broad scope of the proposed amendment, Chief Justice Muniz said, “the people of Florida are not stupid. . . I mean, they can figure this out.” These comments from thoughtful judges who approved Amendment 4, contrary to my strong preference, are not exactly convincing support for the proposal, but rather statements of judicial restraint, perhaps seasoned with confidence that the people will accept such a carefree proposal reject. In short, the court justices did not approve the amendment for placement on the ballot because it is good policy; rather, they approved it because they believed they were constitutionally obligated to do so, after reviewing the amendment on technical issues.

By amending the Constitution, policy areas are ignored by the elected representatives. It imposes a generational one-size-fits-all on policy areas that reasonable people disagree with — abortion and marijuana, to name just two current examples — and short-circuits the give-and-take of the legislative process. If Florida becomes an abortion tourism destination for the South and the number of abortions skyrockets, it will become more difficult for the Legislature to intervene. If widespread and continued use of marijuana leads to pervasive and potentially unexpected health problems, consumers and taxpayers will not be able to hold manufacturers accountable. These problems could be addressed through calibrated legislation, rather than constitutionalized policymaking. Voters who are unsure about the amendments should vote no. We can always legislate on these matters in the future.

Mike Beltran, a Republican, represents District 70 in the Florida State House and was first elected in 2018. He is a Harvard-educated attorney and also has his own litigation practice. Beltran lives and works in unincorporated Hillsborough County.