An Illegal Constitutional Revision?

Comments

17 responses to “An Illegal Constitutional Revision?”

1. 

   Seth

   2008-11-05

   By reading your link to amendments and revision, in section three there is a clear distinction. It says that the electors my amend by initiative. It does not say they may revise by initiative.

   If you read each separate section, it clearly makes a distinction between an advancement and a revision and states what actions and events are necessary for either one to occur.

   Government and judicial intervention has always been vital to human rights.
   Segregation, interracial and the right minorities and women to vote where all issues settled either by legislation or court action. Equality has never been achieved via popular vote.

   That is the LGBT community is considered a minority and is why they need government intervention to protect them from the majority.

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2. 

   M. Nacht

   2008-11-06

   On the contrary. Section 18, which you here linked, does in fact make a distinction between revision and amendment. Only the ability to amend is extended to voters, while the ability to “amend or revise” is extended only to a 2/3 vote of the legislature, followed by a simple majority of voters. This distinction has been recognized by the courts since the early days of California law, but was specifically enumerated in McFadden v. Jordan (1948).

   It is also strictly incorrect to say that the California courts cannot invalidate their own constitution. If the amendment countermands some other aspect of the Constitution, it falls to the judiciary to sort the mess out. It is not resolved by the process of abrogation that the US Constitution uses, whereby new laws overcome old. The process of abrogation is valid for the US because of the intense difficulty of constitutional amendment. An abrogative power given to a simple majority is, as recognized both by the courts and by common sense, neither desirable nor really workable.

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3. 

   David

   2008-11-06

   I grant that section 3 does not say “The electors may amend or revise the Constitution by initiative.” What I am hearing from the above comments is that an Amendment in California is nothing more than a simple statewide law because of how simply the California constitution makes the amending process. In other words, in California they call a revision what the nation calls an Amendment.

   If the courts rule that this was a revision I would expect to see the groups favoring Proposition 8 to start pushing the legislature toward a Section 2 vote to call a convention to revise the constitution.

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4. 

   David

   2008-11-06

   I guess that those outside California should just get used to the fact that California has their own meaning for many words, it’s like the difference between American English and Australian English (without an accent difference to warn us that we’re speaking a foreign dialect).

   In California, the courts may overturn an amendment where other places use “amendment” to define the only kind of law immune from court reversal.

   In California marriage is a universal right while in 47 other states “marriage” describes a relationship that a man and woman may choose to enter into (assuming they meet specific conditions related to age and genealogical diversity).

   In California, anyone may sit for the BAR exam to become a lawyer and argue before the courts while in every other state a person may only sit for the BAR if they have have graduated from an ABA certified law school.

   California really is a sovereign political entity within the United States, unlike the rest of the states.

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5. 

   Tom

   2008-11-06

   An even better case to understand the issue may be Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization, (Cal 1978), which summarizes McFadden and uses “single subject” arguments as part of its analysis (2SSB2, anyone?):

   “In McFadden, we struck down an initiative measure which would have added 21,000 words to our then existing 55,000-word Constitution. We held that the initiative was ‘revisory rather than amendatory in nature,‘ because of the ‘far reaching and multifarious substance of the measure …‘ (p. 332) which dealt with such varied and diverse subjects as retirement pensions, gambling, taxes, oleomargarine, healing arts, civic centers, senate reapportionment, fish and game, and surface mining. We noted that the proposal would have repealed or substantially altered at least 15 of the 25 articles which then comprised the Constitution. (P. 345.)”

   A Google search brought up the analysis here, which I thought explained things well.

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6. 

   David

   2008-11-06

   Thank you for that link Tom. Despite the fact that the California constitution does distinguish between amendment and revision the distinction is vague and is not clarified anywhere in the constitution.

   The discussion you linked to was very enlightening on the issue, although the final resolution will obviously be based on the judicial outcome of this challenge. I thought it was telling that the California Supreme Court refused to rule on this objection before the election – that may be viewed as tacit approval on their part that this was an amendment and not a revision.

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7. 

   Carl

   2008-11-06

   M. Nacht – please re-read section 18. The legislature may only propose an amendment. The legislature may then amend or revise the proposal but the right to actually amend the constitution is vested solely in the people.

   This makes sense really because if the state (composed of its various branches) derives its power from the people, it would be counterintuitive to the allow the state to then take that power away from the people. Think of it this way, your employer hands you a battery and says, “Do things.” You can use the battery, but you can’t steal it from your employer.

   Imagine what would happen if this were the case: the legislature could amend the constituion such that their terms never expired and they would never have to seek reelection.

   The same holds true for the judiciary. If the CA supreme court can rule whether parts of the constitution, which grants it its power, are constitutional, what’s to stop the supreme court from simply overruling the parts of the constitution that grant other branches of the government their power? The supreme court could set itself up as an oligarchy. The supreme court cannot declare a part of the constitution as “unconstitutional”. The supreme court can only decide what it means given the plain meaning of the words. See Marbury v. Madison and the U.S. Constitution.

   Even worse, if M. Nacht were correct, we could end up with a “King Ahnold Schwartzenagger I”. 😉

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8. 

   David

   2008-11-06

   All provisions for amending or revising the constitution include passage by a majority of voters (that’s the message of Section 4).

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9. 

   Carl

   2008-11-06

   Yes, the power to amend or revise lays ultimately with the voter.

   Nacht said, “It is also strictly incorrect to say that the California courts cannot invalidate their own constitution.”

   This means that he thinks the CA supreme court can in all cases invalidate provisions in the consititution it does not agree with. If that were the case, the CA supreme court would be a super electorate/legislature/executor. Nacht is wrong because such a power is expressly against the U.S. Constitution.

   In the end, I think we agree about what rights are reserved to the people.

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10. 

    Carl

    2008-11-06

    Sorry, not, “reserved to the people”. I meant, “reserved by the people.”

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11. 

    David

    2008-11-06

    Yes, we agree. I meant to clarify, not correct your previous statement.

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12. 

    Andrew

    2008-11-19

    Why all the talk is only about a right of 2 persons to marry ?
    Don’t forget the right of N men and M women to marry !
    (N and M are arbitrary non-negative integer numbers and
    at least one is positive 🙂

    Reply
13. 

    David

    2008-11-19

    Because the current discussion is about homosexual relationships and is focused on unions of 2. The discussion about “N men and M women” is a completely different topic. Some opponents of gay marriage will say that “N men and M women” is the next logical step that people will challenge if gay marriage becomes legal but the truth is that, considering the biological foundation for the value of marriage, N men and M women is a much more defensible arrangement than homosexual unions.

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14. 

    Andrew

    2008-11-19

    I disagree that discussion is about homosexual relationships or anybody’s rights,
    discussion is about definition of marriage. And by the way, marriage is a social, not biological, institution. In the past (tribal society, for example) marriage was much different from what it is now.

    Reply
15. 

    David

    2008-11-19

    I hope I did not imply that it was not about the definition of marriage. The discussion is about whether a homosexual relationship fits into our society’s definition of marriage (or more accurately whether our definition of marriage should expand to include homosexual relationships).

    Marriage is a social institution, but the institution has a biological foundation. Societies institute rules regarding marriage in order to define and promote a stable foundation for future generations. Future generations are generated through a distinctly biological process. So the social institution is founded on a reality that is based on biology.

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16. 

    Anonymous

    2008-12-19

    Distinguishing between a California constitutional amendment and a revision is not always a simple matter; nonetheless, here are two analyses that indicate that Prop. 8 was properly an amendment:

    http://www.michaeldorf.org/2008/11/revision-or-amendment.html

    http://volokh.com/posts/1225923130.shtml

    Reply
    1. 

       David

       2008-12-20

       Thanks for sharing those links.

       Reply