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Hastings Constitutional Law Quarterly

Abstract

California's Declaration of Rights proclaims that it is independent from rights set forth in the Federal Constitution. However, the voters of California, by simple majority votes, passed Propositions 8 and 115, the so-called "victims' rights initiatives," in an effort to require California judges to interpret certain California rights no broader than the federal judiciary has interpreted similarly worded rights found in the Federal Bill of Rights. This has resulted in a conflict between the voter's right to initiate law, and the rights of all Californians to an independent Declaration of Rights. This Article does not argue that broader rights are always better, but rather that the Declaration of Rights must be more insulated from voter wim and caprice, especially where unpopular "criminal" rights are involved. To achieve such protection, this Article proposes that any initiative attempting to alter the Declaration of Rights should be required to receive a super-majority vote to become effective.

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