Howard Jarvis Taxpayers Ass'n v. Padilla (62 Cal. 4th 486, 2016)

Opinion

WERDEGAR, J.

In 2014, the California Legislature sought to place on the general election ballot a nonbinding advisory question, Proposition 49. The measure would have asked the electorate whether Congress should propose, and the Legislature ratify, a federal constitutional amendment overturning the United States Supreme Court decision Citizens United v. Federal Election Comm’n (2010) 558 U.S. 310 [175 L.Ed.2d 753, 130 S.Ct. 876].

In response to a petition for writ of mandate urging the unconstitutionality of the Legislature’s action, we issued an order to show cause and directed the Secretary of State to refrain from taking further action in connection with placement of Proposition 49 on the ballot. Our action did not rest on a final determination of Proposition 49’s lawfulness. Instead, we concluded “the proposition’s validity is uncertain” and the balance of hardships from permitting an invalid measure to remain on the ballot, as against delaying a proposition to a future election, weighed in favor of immediate relief. (See American Federation of Labor v. Eu (1984) 36 Cal.3d 687, 697 [206 Cal.Rptr. 89, 686 P.2d 609].)

We now resolve the merits of Proposition 49’s constitutionality. We conclude, (1) as a matter of state law, the Legislature has authority to conduct investigations by reasonable means to inform the exercise of its other powers; (2) among those other powers are the power to petition for national constitutional conventions, ratify federal constitutional amendments, and call on Congress and other states to exercise their own federal article V powers (U.S. Const., art. V); (3) although neither constitutional text nor judicial precedent provide definitive answers to the question, long-standing historical practice among the states demonstrates a common understanding that legislatures may formally consult with and seek nonbinding input from their constituents on matters relevant to the federal constitutional amendment process; (4) nothing in the state Constitution prohibits the use of advisory questions to inform the Legislature’s exercise of its article V-related powers; and (5) applying deferential review, Proposition 49 is reasonably related to the exercise of those powers and thus constitutional. We deny the instant petition for a writ of mandate.

Factual and Procedural Background

In Citizens United v. Federal Election Comm’n, supra, 558 U.S. 310, a divided United States Supreme Court invalidated federal election law restrictions on the political speech of corporations, holding that a speaker’s identity as a corporation, as opposed to natural person, could not justify greater regulation of speech than the First Amendment would have otherwise permitted. (Citizens United, at pp. 319, 365.) In the few years since its issuance, Citizens United’s holding concerning the speech rights of corporations has generated considerable democratic debate, receiving criticism in the presidential State of the Union Address, giving rise to resolutions in Congress to amend the Constitution, and sparking calls for reconsideration within the United States Supreme Court itself. Many have agreed with the Supreme Court majority, while others have concluded the Constitution must be amended to permit renewed restraints on corporate involvement in popular elections.

The Legislature first joined issue with Citizens United in Assembly Joint Resolution No. 1, introduced in 2012 and adopted by both houses of the Legislature in 2014. (Assem. Joint Res. No. 1, Stats. 2014 (2013-2014 Reg. Sess.) res. ch. 77.) The resolution declared: “Corporations are legal entities that governments create and the rights that they enjoy under the United States Constitution should be more narrowly defined than the rights afforded to natural persons.” (Ibid.) Acknowledging Citizens United’s holding to the contrary, the resolution exercised the Legislature’s federal constitutional power to “apply to the United States Congress to call a constitutional convention for the sole purpose of proposing an amendment to the United States Constitution that would limit corporate personhood for purposes of campaign finance and political speech and would further declare that money does not constitute speech and may be legislatively limited.” (Assem. Joint Res. No. 1, Stats. 2014 (2013-2014 Reg. Sess.) res. ch. 77; see U.S. Const., art. V [“The Congress ... on the application of the legislatures of two-thirds of the several states, shall call a convention for proposing amendments . . . .”].)

Separately, the Legislature enacted Senate Bill No. 1272 (2013-2014 Reg. Sess.) (Senate Bill No. 1272), “[a]n act to submit an advisory question to the voters relating to campaign finance . . . .” (Stats. 2014, ch. 175.) A lengthy preamble decried Citizens United, noted the article V process for amending the United States Constitution, and asserted ‘“[t]he people of California and of the United States have previously used ballot measures as a way of instructing their elected representatives about the express achons they want to see them take on their behalf, including provisions to amend the United States Constitution.” (Stats. 2014, ch. 175, § 2, subd. (m); see generally id., § 2.) The measure ”call[ed] a special election to be consolidated with the November 4, 2014, statewide general election” (Legis. Counsel’s Dig., Sen. Bill No. 1272 (2013-2014 Reg. Sess.); see Stats. 2014, ch. 175, § 3) and directed the Secretary of State to submit to voters at that election an advisory question asking whether Congress should propose, and the Legislature ratify, a constitutional amendment overturning Citizens United, and thereafter to submit the results to Congress (Stats. 2014, ch. 175, § 4). The measure became law in July 2014, after both houses passed it and the Governor declined to sign or veto it. (See Cal. Const., art. IV, § 10, subd. (b)(3) [authorizing bills to become statutes after gubernatorial inaction].)

Subsequently, then Secretary of State Debra Bowen designated the advisory question Proposition 49 and began preparing ballot materials. The proposition was to read: “ ‘Shall the Congress of the United States propose, and the California Legislature ratify, an amendment or amendments to the United States Constitution to overturn Citizens United v. Federal Election Commission (2010) 558 U.S. 310 [175 L.Ed.2d 753, 130 S.Ct. 876], and other applicable judicial precedents, to allow the full regulation or limitation of campaign contributions and spending, to ensure that all citizens, regardless of wealth, may express their views to one another, and to make clear that the rights protected by the United States Constitution are the rights of natural persons only?’ ” (Stats. 2014, ch. 175, § 4, subd. (a).)

Petitioners Howard Jarvis Taxpayers Association and Jon Coupal (collectively, Howard Jarvis) promptly filed a petition for writ of mandate in the Third District Court of Appeal, seeking to prevent Secretary Bowen from proceeding with placement of Proposition 49 on the November 2014 ballot. A divided Court of Appeal denied relief.

Howard Jarvis next filed an original emergency petition for writ of mandate in this court. After expedited briefing, we issued an order to show cause and stayed Secretary Bowen from taking further actions in connection with Proposition 49 until after a final decision, effectively removing the advisory question from the November 2014 ballot. The order explained, ”[t]ime constraints require the court to decide immediately whether to permit Proposition 49 to be placed on the November 4, 2014, ballot pending final resolution of this matter.” A five-justice majority concluded Proposition 49’s validity was uncertain and the cost of postponing a potentially lawful proposition to a later ballot, a course the Legislature itself had contemplated in an earlier version of the bill, was outweighed by the cost of permitting a potentially invalid proposition to reach the ballot. “ ‘The presence of an invalid measure on the ballot steals attention, time and money from the numerous valid propositions on the same ballot. It will confuse some voters and frustrate others, and an ultimate decision that the measure is invalid, coming after the voters have voted in favor of the measure, tends to denigrate the legitimate use of the initiative procedure.’ (American Federation of Labor v. Eu[, supra,] 36 Cal.3d 687, 691.)”

Our actions in August 2014 resolved whether Proposition 49 could be placed on the November 2014 ballot. Senate Bill No. 1272 directs only placement on that ballot (Stats. 2014, ch. 175, §§ 3-4), and this case is thus technically moot. But whether the Legislature ever has power to place advisory questions on a statewide ballot is important and undecided, and in the event we were to conclude Senate Bill No. 1272 was indeed constitutional, the Legislature could pass an identical measure directing placement of the same advisory question on a future ballot. In response to our order to show cause, Howard Jarvis and real party in interest the state Legislature of California have briefed the larger questions the petition raises: whether legislative advisory questions are ever permissible, and whether in particular Proposition 49 is permissible or should be enjoined from placement on any future statewide ballot. Notwithstanding that the passage of an election cycle has interposed mootness as a potential obstacle to resolving a significant election law issue, we conclude retaining jurisdiction and addressing the merits is the better course here. (See Independent Energy Producers Assn. v. McPherson (2006) 38 Cal.4th 1020, 1024 [44 Cal.Rptr.3d 644, 136 P.3d 178]; Costa v. Superior Court (2006) 37 Cal.4th 986, 994, 1005 [39 Cal.Rptr.3d 470, 128 P.3d 675].)

Discussion

I. Proposition 49 and the State Legislature’s Power to Investigate

Our Constitution vests “[t]he legislative power of this State ... in the California Legislature which consists of the Senate and Assembly . . . .” (Cal. Const., art. IV, § 1.) It is in the nature of state constitutions that they, unlike the federal Constitution, generally do not grant only limited powers. (Marine Forests Society v. California Coastal Com. (2005) 36 Cal.4th 1, 29 [30 Cal.Rptr.3d 30, 113 P.3d 1062].) Consequently, “unlike the United States Congress, which possesses only those specific powers delegated to it by the federal Constitution, it is well established that the California Legislature possesses plenary legislative authority except as specifically limited by the California Constitution.” (Id. at p. 31.) Lying at the core of that plenary authority is the power to enact laws. (California Redevelopment Assn. v. Matosantos (2011) 53 Cal.4th 231, 254 [135 Cal.Rptr.3d 683, 267 P.3d 580].) It has been said that pursuant to that authority, “[t]he Legislature has the actual power to pass any act it pleases,” subject only to those limits that may arise elsewhere in the state or federal Constitutions. (Nougues v. Douglass (1857) 7 Cal. 65, 70.)

Although the Legislature notes in passing that Proposition 49 resulted from a statute, it does not rest its argument for constitutionality on the syllogism that the legislative power includes the power to enact statutes, Senate Bill No. 1272 takes the form of an enacted statute, and thus for that reason alone the bill and Proposition 49 are within a constitutional source of power. Instead, the Legislature argues it has the inherent power to conduct an investigation in order to select the wisest policy course. Pursuant to that implied investigative power, the Legislature contends, it may enact a statute placing an advisory question before the voters.

We have since the early days of statehood recognized the act of creating a legislature imbues that body with certain implied authority characteristic of parliaments: “A legislative assembly, when established, becomes vested with all the powers and privileges which are necessary and incidental to a free and unobstructed exercise of its appropriate functions. These powers and privileges are derived not from the Constitution; on the contrary, they arise from the very creation of a legislative body, and are founded upon the principle of self preservation.” (Ex parte D. O. McCarthy (1866) 29 Cal. 395, 403.) The scope and nature of these powers is “to be ascertained by a reference to the common parliamentary law.” (Ibid.) Many or most of a parliament’s common law powers relate to matters of self-regulation, such as determining membership and establishing internal rules of procedure (see id. at pp. 403-04), and are not relevant here. One, however, is: the inherent power “[t]o investigate, by the testimony of witnesses or otherwise, any subject or matter, in reference to which [a legislature] has power to act.” (Id. at p. 404, italics omitted.)

The principal function of a legislature is “to enact wise and well-formed and needful laws” (In re Battelle (1929) 207 Cal. 227, 240 [277 P. 725]), but a legislature cannot exercise sound judgment without information. Accordingly, “the necessity of investigation of some sort must exist as an indispensable incident and auxiliary to the proper exercise of legislative power.” (Id. at p. 241; see Special Assembly Int. Com. v. Southard (1939) 13 Cal.2d 497, 503 [90 P.2d 304] [the power to enact legislation “ ‘necessarily presupposes that the members of each house of the legislature must investigate the necessity for legislation’ ”].) The details of how this implied power is to be exercised are consigned to the Legislature’s discretion in the first instance: “ ‘The ascertainment of pertinent facts for legislation is within the power of the lawmaking department of government. When a legislative body has a right to do an act it must be allowed to select the means within reasonable bounds.’ ” (Parker v. Riley (1941) 18 Cal.2d 83, 91 [113 P.2d 873]; see also id. at p. 90 [“Intelligent legislation upon the complicated problems of modern society is impossible in the absence of accurate information on the part of the legislators, and any reasonable procedure for securing such information is proper.”].)

The investigative power is not unlimited. While the Legislature’s powers and functions are extensive (see Carmel Valley Fire Protection Dist. v. State of California (2001) 25 Cal.4th 287, 299 [105 Cal.Rptr.2d 636, 20 P.3d 533]), they must share space with powers reserved to the executive and judicial branches. Although the Legislature’s activities can overlap with the functions of other branches to an extent, the Legislature may not use its powers to “defeat or materially impair” the exercise of its fellow branches’ constitutional functions, nor “intrude upon a core zone” of another branch’s authority. (Marine Forests Society v. California Coastal Com., supra, 36 Cal.4th at p. 45.) The investigative power, no less than any other, may not be used to trench upon matters falling outside the legislative purview.

Even aside from separation of powers concerns, the investigative power permits inquiry only into those subjects “in reference to which [the Legislature] has power to act.” (Ex parte D. O. McCarthy, supra, 29 Cal. at p. 404, italics omitted.) Investigation is permitted as a necessary aid to the execution of other legislative powers, not as an expansion of matters with respect to which the Legislature may act. Where those other powers are subject to limit, so too an investigation in support of them may be constrained. (See Special Assembly Int. Com. v. Southard, supra, 13 Cal.2d at p. 504 [“ ‘when the power to legislate ceases, then the power to investigate for the purpose of aiding the legislature in exercising this power ceases, or stated another way, when the main power of legislating dies the incidental or implied power dies with it’ ”].) The investigative power, constitutionally implied as necessary for the execution of the Legislature’s other powers, does not stand as an unbounded, freestanding power in its own right.

Finally, while the method of investigation is for the Legislature to choose in its broad discretion, within reason (Parker v. Riley, supra, 18 Cal.2d at pp. 90-91), we do not foreclose the possibility limits may arise from other constitutional provisions and the values they embrace.

Given these constraints, to determine whether a particular legislative action is authorized as an exercise of investigative power, we must in the first instance ascertain whether a nexus exists between the matter investigated and some potential action the Legislature has authority to undertake. Senate Bill No. 1272 seeks to conduct a statewide plebiscite on a proposed federal amendment and deliver its results to Congress. (Id., § 4, subds. (a), (b).) The Legislature contends the plebiscite should be understood as part of an investigation into how and whether to exercise the Legislature’s powers in connection with a potential future federal constitutional amendment. Accordingly, we examine next the extent of the role the federal Constitution contemplates for state legislatures in the amendment process.

II. State Legislatures and Federal Constitutional Amendment

The federal Constitution vests state legislatures with certain powers and duties in connection with amendments to the federal Constitution. (See U.S. Const., art. V (article V).) Article V provides in relevant part: “The Congress, whenever two-thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or on the application of the legislatures of two-thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three-fourths of the several states, or by conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by the Congress . . . .” This “unwieldy and cumbrous machinery” (Barron v. The Mayor and City Council of Baltimore (1833) 32 U.S. 243, 250 [8 L.Ed. 672]) for altering the Constitution involves a two-stage process—proposal and ratification—with two paths available at each stage. In the first stage, proposal, either Congress or a national convention called for the purpose may propose an amendment or amendments. In the second stage, ratification, a supermajority of the several states, either through their legislatures or state conventions, must approve the proposal for it to become law. (See United States v. Sprague (1931) 282 U.S. 716, 730 [75 L.Ed. 640, 51 S.Ct. 220]; Bramberg v. Jones (1999) 20 Cal.4th 1045, 1056 [86 Cal.Rptr.2d 319, 978 P.2d 1240].)

The Constitution identifies two explicit roles for state legislatures, one at each stage. At the proposal stage, a state legislature may apply to Congress for the calling of a national convention. (See, e.g., Sen. Joint Res. No. 23, Stats. 1935 (1935 Reg. Sess.) res. ch. 145, pp. 2713-2714 [calling for a convention to adopt a federal amendment permitting congressional regulation of intrastate commerce]; Sen. Joint Res. No. 25, Stats. 1911 (1911 Reg. Sess.) res. ch. 73, pp. 2183-2184 [calling for a convention to adopt a federal amendment providing for the direct election of senators].) At the ratification stage, if Congress chooses the legislative ratification route, a state legislature may assent to, or reject, an amendment. (Hawke v. Smith, No. 1 (1920) 253 U.S. 221, 226-228 [64 L.Ed. 871, 40 S.Ct. 495]; see, e.g., Sen. Joint Res. No. 22, Stats. 1971 (1971 Reg. Sess.) res. ch. 45, pp. 4161-4162 [ratifying the 26th Amend.].) All but one of the 15 amendments to the federal Constitution adopted since California’s statehood have been submitted to state legislatures for approval.

If instead Congress chooses the state convention ratification route, as it did for the Twenty-first Amendment repealing Prohibition, state legislatures may still assume a role. Article V conveys power as much through “what is reasonably implied” as through “what is expressed.” (Dillon v. Gloss (1921) 256 U.S. 368, 373 [65 L.Ed. 994, 41 S.Ct. 510].) It grants to Congress and state legislatures those powers “necessary and incidental” to the carrying out of explicitly required tasks. (State ex rel. Donnelly v. Myers (1933) 127 Ohio St. 104 [186 N.E. 918]; see Dillon, at pp. 373-376; State ex rel. Tate v. Sevier (1933) 333 Mo. 662 [62 S.W.2d 895, 898].) When Congress submitted the repeal of Prohibition to state conventions, state legislatures were implicitly charged with establishing the mechanics of the conventions. (State ex rel. Tate, at p. 898; State ex rel. Donnelly, at p. 918.) Legislatures across the country enacted legislation establishing how delegates were to be chosen and when and where conventions would meet. (Brown, Ratification of the Twenty-first Amendment to the Constitution of the United States (1938) pp. 521-700 [collecting laws]; see Stats. 1933, ch. 149, pp. 598-602 [establishing the procedures for Cal.’s convention to ratify the 21st Amend. to the U.S. Const.].)

The several states have never successfully called for a constitutional convention. To date, each of the 27 federal amendments is the product of a proposal by Congress. But this does not mean state legislatures can play no part until ratification. Legislatures are instituted with the inherent power to issue resolutions (Jefferson, A Manual of Parliamentary Practice (1st ed. 1801) § XXI), statements that “declare[] policy or entreat[] action” but without the binding force of law (American Federation of Labor v. Eu, supra, 36 Cal.3d at p. 712). From the earliest days of the Republic, state legislatures have used that authority to press Congress to wield its own article V proposal power. Unlike the convention power, these resolutions have proven instrumental in reshaping the federal Constitution through amendment; beginning with the very first post-Bill of Rights amendment, one can find their influence underlying the Constitution’s evolution.

In 1793, the legislatures of Massachusetts and Virginia passed resolutions appealing to their representatives in Congress for a constitutional amendment overturning the United States Supreme Court’s narrow construction of state sovereign immunity in Chisholm v. Georgia (1793) 2 U.S. 419 [1 L.Ed. 440, 2 Dall. 419]. (See New Hampshire v. Louisiana (1883) 108 U.S. 76, 88 [27 L.Ed. 656, 2 S.Ct. 176] [Mass. res.]; Florida v. Georgia (1855) 58 U.S. 478, 519-520 [15 L.Ed. 181] (dis. opn. of Campbell, J.) [Va. res.].) Senator Caleb Strong of Massachusetts responded by moving that Congress propose such an amendment (Florida v. Georgia, at p. 520; 4 Annals of Cong. (3d Cong. 1794) pp. 25, 29-30), and the first post-Bill of Rights amendment was ratified in 1795 (U.S. Const., 11th Amend.). Similar resolutions preceded the Twelfth Amendment, ratified in 1804. (See 13 Annals of Cong. (7th Cong. 1st Sess. 1802) pp. 95-96 [Mass. res.]; 11 Annals of Cong. (8th Cong., 1st Sess., 1803) pp. 509, 602-603, 1285 [N.Y. res.]; id. at p. 629 (1802) [N.C. res.]; id. at p. 472 (1802) [Vt. res.].)

Aside from changes wrought by the Civil War, the Constitution remained static for the next century, but when the next wave of changes came, state legislative resolutions were again at the forefront. California’s Legislature first urged the direct election of senators to Congress in 1874, and did so again in 1893 and 1900. Numerous other states took similar action; by 1896, the Idaho, Indiana, Iowa, Kansas, Ohio, Oregon, Wisconsin and Wyoming Legislatures had joined California in instructing their congressional representatives in favor of pursuing a federal amendment. (Sen. Rep. No. 54-530, 1st Sess., p. 9 (1896).) Ultimately, dozens of states would join the chorus. (See Hall, The History and Effect of the Seventeenth Amendment (1936) pp. 221-223, 512-528; Haynes, The Election of Senators (1906) pp. 108-109.) These pleas spurred action in both houses of Congress. (See, e.g., Ames, The Proposed Amendments to the Constitution of the United States During the First Century of Its History (1897) pp. 61-62 [noting the House of Representatives’ passage of a proposed amendment as a response to repeated state legislative resolutions requesting one]; 45 Cong. Rec. 7109-7112 (1910) [introduction of proposed amend, by Sen. Owen of Okla. following a resolution from his state legislature requesting one].) By 1913, direct election of senators was a part of the federal Constitution. (U.S. Const., 17th Amend.)

State resolutions calling for a congressionally proposed federal amendment also preceded the Nineteenth Amendment, which extended suffrage to women. (O’Connor, The History of the Women’s Suffrage Movement (1996) 49 Vand. L.Rev. 657, 667.) The same was true in advance of the Twenty-first Amendment, repealing Prohibition. (E.g., 1931 Conn. Pub. Acts 285.)

State pressure for constitutional change fails far more than it succeeds. Over the years, state legislatures have submitted thousands of resolutions, but Congress has proposed only a few dozen amendments. For example, state legislatures disturbed by the United States Supreme Court’s reapportionment decisions responded with a mixture of article V convention calls and state resolutions requesting that Congress itself propose a federal amendment restoring to the states broad power over apportionment. Ten states asked for Congress to propose an amendment, while one dozen exercised their own power to call for a convention. (Kyvig, Explicit & Authentic Acts (1996) p. 374 & fn. 14.) Ultimately, no amendment emerged from Congress, and an insufficient number of convention calls were submitted to require a national convention.

As the successful Seventeenth Amendment movement and unsuccessful reapportionment movement demonstrate, the use of a direct convention call and an entreaty to Congress to propose an amendment are not mutually exclusive approaches. Just as different state legislatures may elect one route or the other to constitutional change, so a particular state legislature may prefer a multifront approach and take both paths simultaneously. For example, in June 1935, with the country in the throes of the Depression, the Legislature concluded reform of federal securities and bonds taxation to ensure wealthy stock- and bondholders bore a greater share of the costs of government was urgently needed. The Legislature passed a resolution calling on Congress to propose a federal amendment limiting tax exemptions for these forms of property. (Sen. Joint Res. No. 21, Stats. 1935 (1935 Reg. Sess.) res. ch. 108, p. 2669.) Within weeks, it also used its direct federal power to call for a constitutional convention on the same subject. (Sen. Joint Res. No. 22, Stats. 1935 (1935 Reg. Sess.) res. ch. 144, pp. 2712-2713.)

III. The Use of Advisory Questions to Facilitate the Exercise of Article V-related Powers

Text and tradition thus firmly establish a state legislature’s power to petition for and participate in federal constitutional change, by proposing a national convention for the consideration of an amendment, by issuing a resolution calling on Congress to itself propose an amendment, by deciding whether to ratify amendments that emerge from either of these paths, and by establishing ground rules in the event ratification is to be by state convention. If a state legislature can exercise these powers, that a legislature can also avail itself of implied investigative powers to explore the wisdom or desirability of choosing one or another course of action necessarily follows. (See Parker v. Riley, supra, 18 Cal.2d at pp. 90-91; In re Battelle, supra, 207 Cal. at pp. 240-241.)

As noted, however, the state law investigative power is not unbounded. Any investigation must be tethered to the exercise of other established legislative powers, and the method chosen in a particular instance must be reasonable. The issue we face is whether the Legislature may pose to the electorate a single advisory question concerning the People’s support for a federal constitutional amendment. Its resolution depends on the answer to two subquestions. First, in the abstract, does anything in the text or structure of the state or federal Constitutions preclude the Legislature from posing an advisory question when exercising its own article V authority or entreating other bodies with article V authority (Congress and fellow state legislatures) to act? Second, if there is no bar, is the specific question before us today, Proposition 49, a reasonable exercise of that implied state investigative power?

A. The Role in a Republic of Representative Consultation with the People

The texts of the state and federal Constitutions are silent on the issue we face. The state investigative power is, as we have discussed, an inherent but implicit power of a legislature. The state Constitution does not otherwise clearly address the matter. The federal Constitution is even more terse: “As a rule the Constitution speaks in general terms, leaving Congress to deal with subsidiary matters of detail as the public interests and changing conditions may require; and Article V is no exception to the rule.” (Dillon v. Gloss, supra, 256 U.S. at p. 376, fn. omitted.) Regarding what state legislatures may do when carrying out their article V roles, the federal Constitution leaves the scope of the powers and their limits unarticulated.

As for precedent, in our past decisions elucidating the constitutional principles that govern legislative investigations we have not been called upon to determine whether the investigative power may include the enactment of a statute placing an advisory measure on the statewide ballot. (Cf. Parker v. Riley, supra, 18 Cal.2d at p. 91 [approving formation of an independent commission]; In re Battelle, supra, 207 Cal. at p. 241 [approving formation of investigative committees]; Ex parte D. O. McCarthy, supra, 29 Cal. at p. 404 [approving summoning of witnesses].)

Where neither text nor precedent affords guidance, sometimes a “page of history is worth a volume of logic.” (New York Trust Co. v. Eisner (1921) 256 U.S. 345, 349 [65 L.Ed. 963, 41 S.Ct. 506] (maj. opn. of Holmes, J.); see Dyer v. Blair (N.D.Ill. 1975) 390 F.Supp. 1291, 1303-1307 [looking to historical practice to understand the proper scope of state legislative power in connection with federal constitutional amendments].) The history of legislative consultation with the people, and in particular the historical use of advisory questions to inform judgments concerning federal constitutional matters, is illuminating here.

In 1721, noted British Whig and republican Thomas Gordon, writing pseudononymously as Cato, declared: “[T]he difference between free and enslaved countries lies principally here, that in the former, their magistrates must consult the voice and interest of the people; but in the latter, the private will, interest, and pleasure of the governors, are the sole end and motives of their administration.” (1 Trenchard & Gordon, Cato’s Letters (Hamowy edit., 1995) No. 38 (July 22, 1721) The Right and Capacity of the People to Judge of Government (Gordon) p. 272 (Cato’s Letters).) The seeds of a practice of consultation, the nonbinding solicitation of the people’s views to inform legislative judgments on significant matters, were planted in England in the 17th century. Initially, at least, the practice focused as much on the shaping of public opinion as its solicitation: “With the development of popular sovereignty in the 1640s, various members of Parliament opened communications with constituents to gain popular support for Parliamentary measures directed against the King.” (Morgan, Inventing the People (1988) p. 220.) By the 18th century, however, a more genuine interest in popular views could be found; members of the House of Commons “often” would delay action “until they had consulted their constituents.” (Gibbons, Ideas of Political Representation in Parliament 1651-1832 (1914) p. 25; see 1 Cato’s Letters, at p. 271 [“[Ojur records afford instances, where the House of Commons have declined entering upon a question of importance, till they had gone into the country, and consulted their principals, the people: So far were they from thinking that private men had no right to meddle with government.”].)

Consultation shortly took root in the colonies and soon became “much more an American technique than a British one.” (Reid, The Concept of Representation in the Age of the American Revolution (1989) p. 86.) In New York and Massachusetts, consultation flourished; occasionally it was resorted to even in other colonies such as Pennsylvania that did not have an established town meeting structure through which to assess the popular will. (Id. at pp. 86-95.) When the Continental Congress was faced with its most momentous decision in the spring of 1776, it did not act unilaterally, but instead “delayed its vote on Independence by three weeks ‘to give an Oppertunity [s/c] to the Delegates from those Colonies, which had not yet given Authority to adopt this decisive Measure, to consult their Constituents.’ ” (Maier, American Scripture: Making the Declaration of Independence (1997) p. 67 [quoting a letter from Maryland’s congressional representatives]; see Kruman, Between Authority & Liberty (1997) p. 77.) Maryland’s delegates desired “ ‘the fair and uninfluenced Sense of the People’ on Independence” and asked their colonial assembly to “ ‘endeavour to collect the opinion of the people at large in some Manner or other.’ ” (Maier, at p. 67.) So too Massachusetts; there, the colonial assembly asked every town to hold a special meeting, debate whether to declare independence, and advise its representatives where its people stood. (Id. at p. 59; see Luce, Legislative Principles (1930) p. 570; Reid, at p. 102.) And in 1780, New York’s assembly sought popular instruction concerning whether to draft a colonial constitution. (Kruman, Between Authority & Liberty, supra, at p. 77.) Pre-constitutional America thus had an established tradition whereby the people’s representatives could, if they so chose, solicit the people’s views to inform momentous decisions.

The framers of the federal Constitution likewise accorded the people’s views a foundational role. (See The Federalist No. 22, supra, at p. 146 (Hamilton) [the consent of the people is the “pure original fountain of all legitimate authority”]; The Federalist No. 49, supra, at p. 339 (Madison) [“the people are the only legitimate fountain of power”].) The First Amendment, Virginia Representative James Madison explained, ensured “the people may therefore publicly address their representatives[,] may privately advise them, or declare their sentiments by petition to the whole body; in all these ways they may communicate their will.” (1 Annals of Cong. (1st Cong. 1789) p. 766.) These popular views, Alexander Hamilton wrote, should matter (up to a point): “The republican principle demands, that the deliberate sense of the community should govern the conduct of those to whom they entrust the management of their affairs; but it does not require an unqualified complaisance to every sudden breese of passion, or to every transient impulse which the people may receive from the arts of men, who flatter their prejudices to betray their interests.” (The Federalist No. 71, supra, at p. 482 (Hamilton).) The opinion of Thomas Gordon as Cato that in a free nation representatives could and should “ ‘consult the Voice and Interest of the People’ ” was one “[a]ll [the Founders] could agree with.” (1 The Founder’s Constitution (Kurland & Lerner edits., 1987) p. 41.) The founding generation gave proof of their principles when they submitted the Constitution, not to the state legislatures, but to popular conventions for ratification. (U.S. Const., art. VII; see The Federalist No. 43, supra, at p. 296 (Madison) [“The express authority of the people alone could give due validity to the Constitution.”]; Remarks of Col. Mason, 2 Records of the Federal Convention of 1787, supra, at p. 88 [the Constitution must be submitted “[t]o the people with whom all power remains that has not been given up in the Constitutions derived from them”].)

Although this history does not clearly delineate the permissible means of formal consultation, it reflects an implicit understanding that republican principles generally permit representatives to inquire of the people on fundamental matters. Consistent with that understanding, for more than a century, states have employed the particular means at issue here—an advisory ballot question—to inform decisions concerning federal constitutional matters.

Until adoption of the Seventeenth Amendment, the federal Constitution vested the selection of senators in state legislatures. (See U.S. Const., art. I, § 3.) By the late 19th century many states, especially in the Midwest and West, were inclined to transfer that power to the people themselves. (1 Haynes, The Senate of the United States: Its History and Practice (1938) pp. 96-104; Rossum, California and the Seventeenth Amendment in The California Republic (Janiskee & Masugi edits., 2004) pp. 83-85.) In 1891, our Legislature placed on the next year’s general election ballot an advisory question, asking the voters whether they were for, or against, “ ‘the election of United States Senators by the direct vote of the people,’ ” with the results to be submitted to the President, Congress, and every state in the Union. (Stats. 1891, ch. 48, p. 46.) The result was a landslide; better than 93 percent of those casting ballots favored direct election. (Rossum, at p. 84; Hall, The History and Effect of the Seventeenth Amendment, supra, at p. 230.) So informed, the Legislature requested that California’s senators and representatives propose a constitutional amendment providing for the direct election of senators. (Assem. Joint Res. No. 7, Stats. 1893 (1893 Reg. Sess.) res. ch. 15, p. 620.)

Nevada in 1893 and Illinois in 1902 followed suit. The Nevada Legislature, viewing it as “expedient that the wishes of the people of this State upon the subject of the election of United States Senators should be unmistakably expressed” (1893 Nev. Stat. 21-22), placed on the ballot an advisory question and forwarded the results (nearly eight to one in favor of amendment) to Congress and other states’ Governors (id., p. 22; Haynes, The Election of Senators, supra, at pp. 106, 110). Illinois’s Legislature sought general constitutional guidance, asking the polity whether “ ‘the next General Assembly [should] take the necessary steps, under Article 5 of the Constitution of the United States, to bring about the election of United States Senators by the direct vote of the people?’ ” (Haynes, at p. 110, fn. 10.) Guidance it got; by a nearly six-to-one margin, voters favored legislative efforts to bring about a federal amendment. (Id. at p. 106.) So advised, the next year the Illinois Legislature petitioned for a national constitutional convention. (See id. at p. 108.)

Prior to ratification of the Seventeenth Amendment, our Legislature turned again to the advisory question mechanism to obtain advice on whom to select for the Senate under its not-yet-superseded federal power to choose senators. (Stats. 1909, ch. 405, § 2, p. 691 [providing for an “advisory vote for the purpose of ascertaining the sentiment of the voters” concerning senatorial candidates]; Stats. 1911, ch. 387, § 1, pp. 704-705 [directing that future general election ballots include the names of party candidates for Sen., with results of the advisory referenda to be forwarded to the Leg.].) Here, California was following the lead of the many other legislatures that saw fit to inform their exercise of their federal power to choose senators through advisory plebiscites. Nebraska was the first state to adopt this course, in 1875 (Kyvig, Explicit & Authentic Acts, supra, at p. 210); in 1899, the Nevada Legislature adopted an advisory procedure essentially identical to what California later enacted (1899 Nev. Stat. 86-87); and by 1911, more than half of all states had some form of advisory plebiscite in place (Kyvig, at p. 210; see generally Haynes, The Election of Senators, supra, at pp. 140-150).

In the 1920s and 1930s, as discontent over Prohibition grew, many state legislatures submitted to the people advisory questions asking whether the Eighteenth Amendment should be repealed. The Rhode Island Legislature declared it “proper and desirable that each qualified elector should be permitted to exercise his constitutional right to register his opinion on this broad social and economic question” and directed that the results be sent to Congress. (1930 R.I. Acts & Resolves 63-64.) The people of Rhode Island favored, by more than three to one, constitutional change. (Assn. Against the Prohibition Amendment, 32 Reasons for Repeal (1932) p. 34.) The results were the same in Wyoming, where the legislature solicited the electorate’s views and ordered the secretary of state to transmit the results to Congress (1931 Wyo. Sess. Laws 249); better than 70 percent favored a constitutional amendment (Ann. Rep. of the President of the Association Against the Prohibition Amendment for the Year 1932 (1933) p. 12). Similar votes took place across the country. (See, e.g., 1931 Conn. Pub. Acts 285-286 [petitioning Cong, for repeal of the 18th Amend., subject to the electorate in an advisory vote signaling its desire for an amendment]; 1932 La. Acts 767 [submitting to an advisory vote a joint resolution petitioning Cong, to call a constitutional convention to repeal or modify Prohibition]; 1925 Nev. Stats. 358 [calling for a constitutional convention in the wake of a landslide pro-repeal advisory vote]; 32 Reasons for Repeal, at p. 34 [cataloguing the results of these and other advisory votes]; Ann. Rep. of the President, at pp. 9-12 [same].) Repeal followed anon, proposed by Congress and ratified by the end of 1933. (U.S. Const., 21st Amend.)

More recently, the Llorida Legislature placed on the ballot two advisory questions asking whether the people supported federal constitutional amendments to prohibit forced busing and permit school prayer. (1972 Lla. Laws 114-115.) And in 2010, the Florida Legislature applied to Congress for the calling of a constitutional convention to propose a balanced budget amendment (Lla. Sen. Conc. Res. No. 10 (2010); see 160 Cong. Rec. S5563-S5564 (daily ed. Sept. 11, 2014)) and again placed on a subsequent general election ballot a nonbinding advisory question asking whether the federal Constitution should “be amended to require a balanced federal budget without raising taxes?” (Lla. Sen. Bill No. 2742 (2010 Reg. Sess.) § 1).

State legislatures have also seen fit to resort to advisory questions when debating whether to ratify a proposed amendment. In the 1920s, Congress sent to the states an amendment overturning United States Supreme Court decisions limiting Congress’s regulatory power over child labor. (H.J.Res. No. 184, 68th Cong., 1st Sess. (1924) 43 Stat. 670; see Child Labor Tax Case (1922) 259 U.S. 20 [66 L.Ed. 817, 42 S.Ct. 449]; Hammer v. Dagenhart (1918) 247 U.S. 251 [62 L.Ed. 1101, 38 S.Ct. 529].) Before acting, the Massachusetts legislature submitted the question of ratification to an advisory vote of the people. (Kyvig, Explicit & Authentic Acts, supra, at p. 259.) In the 1970s, the Nevada Legislature had before it the proposed Equal Rights Amendment; as had Massachusetts a half-century earlier, it turned first to the electorate, asking voters whether they ‘“recommend[ed] that the Nevada legislature ratify” the proposed amendment. (1977 Nev. Stat. 322; see Kimble v. Swackhamer (1978) 439 U.S. 1385, 1386 [58 L.Ed.2d 225, 99 S.Ct. 51].) Contemporaneously, the Idaho Legislature adopted a rule that it would act on proposed federal amendments only after obtaining the results of a nonbinding popular vote on any proposed amendment. (Idaho Code former § 34-2217, repealed by 1995 Idaho Sess. Laws, ch. 227, § 1.) When the Twenty-seventh Amendment, regulating congressional salaries, was up for consideration in 1988, the legislature put the matter to a vote and, after the electorate strongly supported it, ratified the amendment. (Kyvig, at p. 466; Bernstein, The Sleeper Wakes: The History and Legacy of the Twenty-seventh Amendment (1992) 61 Fordham L.Rev. 497, 539.)

When contested, these actions have been upheld. California’s provision for including an advisory senatorial vote on primary election ballots was challenged as violating the one-subject rule because it was adopted as part of an act also regulating binding, not merely advisory, primary voting. (Socialist Party v. Uhl (1909) 155 Cal. 776, 781 [103 P. 181]; see Cal. Const., art. IV, § 9 [one-subject rule].) In the course of rejecting the challenge, this court held: “There is nothing in the constitution—either the amendment of [former] section 2½ of article II, or any other provision—which prohibits the legislature from providing at a primary for an expression of a choice as to a candidate for United States senator. It is within the general legislative power to do so, and that it has provided for this advisory vote at a primary election is for the purpose of convenience” and sufficiently germane to the subject of primary elections. (Socialist Party, at p. 782.) We considered “whether legislation in connection with primary laws granting such right of expression of a choice is prohibited by the constitutional provision particularly under consideration [relating to the one-subject rule], or any other” and concluded it was not. (Ibid., italics added.)

The Nevada Supreme Court rejected a federal constitutional challenge to the Nevada Equal Rights Amendment vote, explaining that the advisory question was not “a limitation on legislative power violative of article V of the federal constitution” but instead “simply specifie[d] a means by which to assist the legislature whether to consent or not to consent to the proposed amendment.” (Kimble v. Swackhamer (1978) 94 Nev. 600 [584 P.2d 161, 162-163].) Then Justice Rehnquist, acting as circuit justice, rejected an application for summary reversal of this decision, agreeing that the advisory question posed no article V problem: “Under the Nevada statute in question, ratification will still depend on the vote of the Nevada Legislature, as provided by Congress and by Art. V. I would be most disinclined to read either Hawke, supra, [253 U.S. 221,] or Leser [v. Garnett (1922) 258 U.S. 130 [66 L.Ed. 505, 42 S.Ct. 217]], or Art. V as ruling out communication between the members of the legislature and their constituents.[] If each member of the Nevada Legislature is free to obtain the views of constituents in the legislative district which he represents, I can see no constitutional obstacle to a nonbinding, advisory referendum of this sort.” (Kimble v. Swackhamer, supra, 439 U.S. at pp. 1387-1388.) Kimble suggests, at a minimum, “there are at least some circumstances in which the submission of a ballot proposition relating to an amendment to the federal Constitution will not violate Article V” and establishes that article V does “not completely foreclose[] a state’s electorate from contributing some input to the amendment process.” (Bramberg v. Jones, supra, 20 Cal.4th at p. 1058; see American Federation of Labor v. Eu, supra, 36 Cal.3d at p. 707 [a popular initiative proposing in nonbinding fashion a federal amendment would raise no art. V issues].)

In 1986, the Idaho Attorney General considered the constitutionality of the then extant Idaho requirement that decisions whether to ratify federal amendments be deferred until after a nonbinding advisory referendum. (See Idaho Code former § 34-2217, repealed by 1995 Idaho Sess. Laws, ch. 227, § 1.) The Attorney General did not doubt that state legislatures could voluntarily submit nonbinding advisory questions concerning federal constitutional amendments to the electorate in individual cases; the legislature could choose to follow a “referendum first, legislative decision second” rule. The only potential problem with the advisory vote law involved its attempt to constrain future legislatures; that is, while any legislature in its discretion could decide to pose an advisory question before voting on ratification, the current state legislature could not mandate that future legislatures be required to do so. (Ops. Idaho Atty.Gen. No. 86-9 (1986).)

B. Advisory Questions and State Constitutional Limits

Legislatures in California and elsewhere thus have established a tradition of using advisory ballot measures to determine the will of the people on questions pertaining to amendments to the federal Constitution. While “ ‘usage and custom, no matter how long continued, cannot create a right in the legislature that otherwise it does not possess’ ” (Special Assembly Int. Com. v. Southard, supra, 13 Cal.2d at pp. 508-509), we see no evidence the drafters of the California Constitution intended to deprive the Legislature of a tool other state legislatures have long used to ensure they are truly speaking on behalf of their states in the federal constitutional amendment process.

Nevertheless, Howard Jarvis offers a series of arguments for why the structure and implications of various provisions of our state Constitution necessarily bar the Legislature from using an advisory question as a means of investigating the will of the people with respect to federal constitutional amendments. We consider four separate contentions: (1) the Constitution confines the means of investigation to investigation by committee; (2) the Constitution confines the Legislature’s access to the ballot to specifically enumerated circumstances that do not include advisory questions; (3) the Constitution prohibits anyone from placing on the ballot a measure that does not enact law; and (4) the Constitution allocates legislative power to the people and the Legislature in a way that preserves clear lines of accountability and implicitly prohibits devices such as advisory questions that would blur those lines. None has merit; no constitutional provision or set of provisions prohibits the use of advisory ballot measures concerning federal constitutional amendments.

1. The Committees Clause

Howard Jarvis argues that the power to investigate is limited by California Constitution, article IV, section 11, which authorizes investigations by committee. Under that provision, ‘“[t]he Legislature or either house may by resolution provide for the selection of committees necessary for the conduct of its business, including committees to ascertain facts and make recommendations to the Legislature on a subject within the scope of legislative control.” (Ibid.) From this language, Howard Jarvis reasons that the Legislature may ascertain facts only through committee investigations, and not by any other means. This argument misapprehends the import of the committees clause.

Prior to the clause’s adoption in 1940 (see Cal. Const., art. IV, former § 37, added by initiative, Gen. Elec. (Nov. 5, 1940)), the extent of the Legislature’s ability to act through less than all of the members of one house was the subject of dispute. (See Swing v. Riley (1939) 13 Cal.2d 513 [90 P.2d 313]; Special Assembly Int. Com. v. Southard, supra, 13 Cal.2d 497; In re Battelle, supra, 207 Cal. 227.) In Battelle, this court considered but rejected the argument that the Legislature could not investigate by committee, explaining that the Constitution implied a power to investigate and committee investigations were a permissible exertion of that power. (Battelle, at pp. 240-244.) In Special Assembly, we again construed the state Constitution as implying a power to investigate, including a power to investigate by committee. (Special Assembly, at pp. 502-504.) We held, however, that the Legislature was not a continuing body, that it ceased to exist between sessions, that its express powers ceased to exist at the same time, and accordingly that the implied power to investigate died too. (Id. at pp. 504-507.) Consequently, an interim committee established by the Assembly to conduct investigations after legislative adjournment and report to the next session of the Legislature was unconstitutional. (Id. at p. 509; see Swing v. Riley, at pp. 517-520 [extending the same conclusion to a committee created by a joint resolution of both houses].)

At the next general election after Special Assembly, the Legislature placed on the ballot a constitutional amendment making explicit the power to investigate and act by committee and overturning the holdings that that power did not extend between legislative sessions. A ballot argument in support of amendment quoted directly from In re Battelle, supra, 207 Cal. at page 241: In “ ‘the preparation of wise and timely laws the necessity of investigation of some sort must exist as an indispensable incident and auxiliary to the proper exercise of legislative power.’ ” (Voter Information Guide, supra, argument by Assemblymember Voigt in favor of Assem. Const. Amend. No. 2, p. 24.) Another argument explained that, although the inherent power to investigate by committee had always been recognized, “[a] recent court decision has held, however, that this practice in our State is without constitutional authority.” (Id., argument by Assemblymember Cronin in favor of Assem. Const. Amend. No. 2, p. 24 [implicitly referencing Special Assembly].) The amendment’s purpose was to supply, explicitly, the constitutional authority Special Assembly had found lacking. (Voter Information Guide, supra, at p. 24.)

Accordingly, we read the text of the committees clause as language of expansion, not restriction. The ballot argument in support endorses extant precedent establishing an implied power of investigation. The amendment simply removes doubt over whether the Legislature may investigate and carry out other necessary functions also by way of committee; it does not require the Legislature henceforth to inform itself of facts bearing on the need for action only by way of committee. Nothing in California Constitution, article IV, section 11 constrains the Legislature from placing advisory questions on the ballot.

2. Legislative Access to the Ballot

Various provisions of the state Constitution expressly authorize the Legislature to place measures on the ballot for voter approval. The Legislature may amend or repeal a statute adopted by voter initiative, but generally only if the amendment or repeal is first submitted to and approved by the electorate. (Cal. Const., art. II, § 10, subd. (c).) The Legislature may authorize the issuance of bonds, but above a certain amount they must be submitted to the voters for approval. (Id., art. XVI, § 1.) Finally, the Legislature may propose state constitutional amendments, but such amendments must be submitted to the voters for approval. (Id., art. XVIII, §§ 1, 4.)

Invoking the interpretive canon expressio unius est exclusio alterius, Howard Jarvis argues these three specific instances in which legislative achon must be ratified by the voters demonstrate no others are permitted. (See also dis. opn., post, at p. 583 [arguing that the conshtuhonal scheme precludes legislative access to the ballot in other circumstances].) Under the canon, the explicit mention of some things in a text may imply other matters not similarly addressed are excluded. (In re J. W. (2002) 29 Cal.4th 200, 209 [126 Cal.Rptr.2d 897, 57 P.3d 363]; Lake v. Reed (1997) 16 Cal.4th 448, 466 [65 Cal.Rptr.2d 860, 940 P.2d 311].) Applied to specific grants of power, the canon may support “ ‘ “an implied negahve; an implication that no other than the expressly granted power passes by the grant; that it is to be exercised only in the prescribed mode.” ’ ” (Wildlife Alive v. Chickering (1976) 18 Cal.3d 190, 196 [132 Cal.Rptr. 377, 553 P.2d 537]; see Wheeler v. Herbert (1907) 152 Cal. 224, 237 [92 P. 353] [applying the canon to interpret the scope of the Legislature’s powers under the state Const.].)

Here, however, the canon has no applicahon. The expressio unius inference arises only when there is some reason to conclude an omission is the product of intentional design. (Marx v. General Revenue Corp. (2013) 568 U.S. _, _ [185 L.Ed.2d 242, 253, 133 S.Ct. 1166, 1175]; Silverbrand v. County of Los Angeles (2009) 46 Cal.4th 106, 126 [92 Cal.Rptr.3d 595, 205 P.3d 1047].) The text must contain a specific list or facially comprehensive treatment. (See Barnhart v. Peabody Coal Co. (2003) 537 U.S. 149, 168 [154 L.Ed.2d 653, 123 S.Ct. 748] [the canon “has force only when the items expressed are members of an ‘associated group or series,’ justifying the inference that items not mentioned were excluded by deliberate choice, not inadvertence”]; Chevron U. S. A. Inc. v. Echazabal (2002) 536 U.S. 73, 81 [153 L.Ed.2d 82, 122 S.Ct. 2045] [the canon requires a “series of terms from which an omission bespeaks a negative implication”]; In re Sabrina H. (2007) 149 Cal.App.4th 1403, 1411 [57 Cal.Rptr.3d 863] [the canon “is generally applied to a specific statute, which contains a listing of items to which the statute applies” and may not have any application to “an entire code”].) The provisions Howard Jarvis relies on are widely separated, both in where they are codified and as to how and when they were adopted. The provision allowing the Legislature to propose to the electorate amendments to initiative measures was adopted by the voters at the 1946 general election. (See Cal. Const., art. IV, former § 1b, enacted by Prop. 12, Gen. Elec. (Nov. 5, 1946); People v. Kelly (2010) 47 Cal.4th 1008, 1038 [103 Cal.Rptr.3d 733, 222 P.3d 186].) The provision providing for bond measures to be placed on the ballot was adopted at the 1878-1879 Constitutional Convention. (Cal. Const., art. XVI, § 1.) The provision providing for the Legislature to place constitutional amendments on the ballot traces all the way back to California’s first Constitution. (Cal. Const. of 1849, art. X, § 1.) Nothing suggests these provisions were intended as a conscious and comprehensive treatment, such that one might infer powers not explicitly conveyed were intentionally omitted.

More fundamentally, Howard Jarvis’s argument rests on a misconception as to the nature of the constitutional provisions it cites. Each involves not a grant of authority but a limitation on legislative power—an occasion when the Legislature must turn to the voters, where otherwise it would have been at liberty to act without voter input. Whatever might be said for the logic of inferring from a few specific grants of authority the absence of some more general authority, that logic cannot be turned on its head to infer from a few specific limits on legislative authority the presence of a broader, unstated limit on legislative authority. The expressio unius canon, were we to apply it here, would at most support the inference that the three cited instances are an exhaustive list of the circumstances in which submission of a matter to a plebiscite is mandatory. The canon and the scattered provisions Howard Jarvis cites offer no guidance at all on the actual question before us, whether the Legislature in its discretion may turn to the voters to ascertain their will concerning a possible amendment to the federal Constitution.

3. The Use of the Ballot for Nonlawmaking Purposes

In a closely related argument, Howard Jarvis notes this court’s holding that the people by initiative may place on the ballot only measures that enact law. (American Federation of Labor v. Eu, supra, 36 Cal.3d at pp. 694, 708-714; see Cal. Const., art. II, § 8, subd. (a) [“The initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them.”].) From this, Howard Jarvis reasons that the people’s initiative and referendum power a