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The California Supreme Court on Amendment vs. Revision:

Under the California Constitution, the initiative can be used for constitutional "amendments" but not constitutional "revisions"; see this post for more, including the constitutional text that strongly suggests this. Here's the California Supreme Court's explanation for why Prop. 8 is a constitutionally permissible "amendment" and not an impermissible "revision" (all emphases in original):

"[O]ur analysis in determining whether a particular constitutional enactment is a revision or an amendment must be both quantitative and qualitative in nature. For example, an enactment which is so extensive in its provisions as to change directly the 'substantial entirety' of the Constitution by the deletion or alteration of numerous existing provisions may well constitute a revision thereof. However, even a relatively simple enactment may accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision also. In illustration, the parties herein appear to agree that an enactment which purported to vest all judicial power in the Legislature would amount to a revision without regard either to the length or complexity of the measure or the number of existing articles or sections affected by such change." ...

From a quantitative standpoint, it is obvious that Proposition 8 does not amount to a constitutional revision. The measure adds one 14-word section to article I -- a section that affects two other sections of article I by creating an exception to the privacy, due process, and equal protection clauses contained in those two sections as interpreted in the majority opinion in the Marriage Cases. Quantitatively, Proposition 8 unquestionably has much less of an effect on the preexisting state constitutional scheme than virtually any of the previous constitutional changes that our past decisions have found to constitute amendments rather than revisions....

[As to the qualitiative prong of the amendment/revision analysis,] the numerous past decisions of this court that have addressed this issue all have indicated that the type of measure that may constitute a revision of the California Constitution is one that makes "far reaching changes in the nature of our basic governmental plan," or, stated in slightly different terms, that "substantially alter[s] the basic governmental framework set forth in our Constitution." ... Proposition 8 works no such fundamental change in the basic governmental plan or framework established by the preexisting provisions of the California Constitution -- that is, "in [the government's] fundamental structure or the foundational powers of its branches." ...

Again, strikes me as quite correct.

Stephen Clark (mail):
I'm not sure how any of this can strike anyone as "quite correct" or, for that matter, quite incorrect, since the court is not here--and has not in any of its precedents--relied on anything but formalistic musings about the words "revision" and "amendment." Nothing in this extensive passage grounds this interpretation of "revision" in any persuasive policy. The majority has no substantive response--none--to the simple question, why isn't stripping a historically despised minority of equal protection, due process, and privacy rights a significant qualitiative change in the constitution? Whether to construe "revision" and "amendment" broadly or narrowly requires a policy choice because there is no other useful source of guidance. But the only answer the majority provides is implicit praise for the initiative process--the same process that has bankrupted the state. Where's the majority's policy defense of ad hoc, uncritical, non-deliberative mob rule? Why was the possibility of legislatively proposed revision not a sufficient check on the court in this case? "Popular sovereignty," it bears noting, was a concept that the framers of the U.S. Constitution thought best implemented, on a statewide scale, by way of deliberative conventions. Why were they wrong and 20th-century California populists right? The conclusory statement that this seems "quite correct" hardly makes it so, or even particularly persuasive as an interpretative rationalization.
5.26.2009 3:32pm
Robert West (mail) (www):
why isn't stripping a historically despised minority of equal protection, due process, and privacy rights a significant qualitiative change in the constitution?

Because it wasn't in 1964 when the voters, via initiative, repealed the state's fair housing law ... so it can't possibly be now, either.
5.26.2009 3:44pm
BZ (mail):
@Stephen Clark:

The question of "revision" vs "amendment" has been raised in many other states (and according to the opinion today, which I find outrageous in its treatment of the initiative's intent, purpose and language, in California as well). For example, the question is always raised in Florida, another state which until recently had a similarly easy initiative process. In most states, this question is at least partially answered by the "single-subject" test: if a measure affects more than a single-subject, it is deemed too broad for the initiative process. The underlying concept is to avoid "logrolling," which is the inclusion of unrelated measures in an effort to boost the vote to a majority. Most of the initiative states have a single-subject test, and thus don't get to the express revision/amendment question. But the principles are the same.

And I agree with Prof. Volokh on his analysis of this point. In Florida, for example (I use that state because it has just as rich a legal analysis of initiatives as California), the general tests are:
1) does the amendment affect more than one section of the Constitution?
2) does the amendment affect more than one level of government (local vs state)?
3) does the amendment perform the functions of more than one branch of government (executive/judicial/legislative)?
See, for example, the Everglades Sugar Fee, which was deemed to have created a fourth branch of government by taxing specific land uses, and providing for a new agency to use the funds for a particular purpose.
The Court here properly viewed Prop 8 as an amendment because it was specific to what it did, and did it in a fashion which was limited in scope and operation.
5.26.2009 3:45pm
geokstr (mail):

Stephen Clark:
the initiative process--the same process that has bankrupted the state.

Right, the refusal of the state government to constrain spending in the least, rampant illegal immigration, unchecked state employee unions, high tax rates and heavy regulation chasing the productive out of the state, and refusal to license exploration and drilling of abundant natural resources have nothing to do with it. Just those mean ol' voters passing initiatives.
5.26.2009 3:53pm
Perseus (mail):
I'm not sure how any of this can strike anyone as "quite correct" or, for that matter, quite incorrect, since the court is not here--and has not in any of its precedents--relied on anything but formalistic musings about the words "revision" and "amendment." Nothing in this extensive passage grounds this interpretation of "revision" in any persuasive policy.

Perhaps because the Court is neither authorized nor competent to ground its interpretation of the distinction in any "persuasive policy."
5.26.2009 4:12pm
Stephen Clark (mail):
@ BZ

Plausible, but the single subject rationale is nowhere to be found in the court's interpretation of the California provision. And it isn't the only plausible rationale.

In particular, it doesn't fit well with the court's view that a quantitatively narrow measure can constitute a "revision" because of its qualitative impact alone. If the court wants to change its interpretation, that's its prerogative. But it ought to be honest about it. To say that limiting the rights of criminal defendants to federal standards was qualitatively significant enough to constitute a "revision" but that limiting the equal protection, due process, and privacy rights of gays and lesbians is not is simply not credible.
5.26.2009 4:21pm
Stephen Clark (mail):
@ Perseus

Then what should the court ground its decision in? You failed to quote the other relevant part of my comment: There is no other source. There's no evidence of intent. The court faces a naked provision with two words "amendment" and "revision," that are amenable to a range of permissible interpretation. Although conservatives like to pretend that judging is purely mechanical, sometimes a judge runs out of source material and confronts a policy choice. Pretending that the court isn't facing a policy choice does not mean the court isn't making a policy choice.
5.26.2009 4:24pm
Parenthetical:
The court went too far in limiting the sort of initiatives that constitute revisions. Werdegar's concurrence (in the result) stated a more coherent standard for revisions:

I reject, however, much of the majority's analysis. The majority purports to find in this court's prior decisions a definition of the term "revision" — one focused on governmental structure and organization — that categorically excludes Proposition 8 and thus avoids the daunting task of reconciling with our constitutional tradition a voter initiative clearly motivated at least in part by group bias.

* * *

The question before us then, as I would pose it, is whether Proposition 8 accomplishes a change of sufficient scope in a foundational principle of individual liberty as to amount to a constitutional revision. Certainly Proposition 8 affects the principle of equal protection. . . . Proposition 8 has not, however, in my view, by this impingement brought about such a broad change in the principle of equal protection as to amount to a constitutional revision.

(Concurrence at p.141 of the slip op.)
5.26.2009 4:33pm
Robert Greer (mail):
"Exception[s]" to the privacy, due process, and equal protection clauses are necessarily abrogations of those clauses when they exclude suspect classes without substantive reason. If Prop 8 denied Jews the right to marry, we would immediately recognize it as an affront to basic principles of liberal governance, irrespective of its technical constitutionality. The California Supremes' ruling in this case is sensible, but it also lays bare the flat incompatibility of California's initiative-amendment process with the rule of law.
5.26.2009 4:47pm
Putting Two and Two...:
I'm no lawyer (as may be readily apparent) but it strikes me that the Court's decision that Prop 8 did not qualitatively alter the California Constitution rests largely on the Court's refusal to actually do what the proposition plainly says, i.e. to hold the 18,000 marriages as invalid.

What we have here is a particularly messy batch of sausages.
5.26.2009 5:31pm
hazemyth:
Does Werdegar elaborate on his evaluative criteria regarding the 'breadth' of the change?
5.26.2009 7:09pm
Robert West (mail) (www):
Putting two and two: I wouldn't say that the argument rests on not invalidating the already performed marriages; i'd say that the argument rests on reading prop 8 to apply to the word 'marriage' and not the substantive rights associated with marriage.
5.26.2009 7:40pm
ReaderY:

Popular sovereignty," it bears noting, was a concept that the framers of the U.S. Constitution thought best implemented, on a statewide scale, by way of deliberative conventions. Why were they wrong and 20th-century California populists right?


Nobody knows if the people of California are right. But the people of that state have chosen to organize their government that way. Inherent in freedom -- responsibility and choice in ones own actions -- is the right to be wrong, as long as one is willing to accept the consequences of being wrong. It is because the people of California have in their freedom to govern themselves made a choide, not because the self-government choice they made was wise or right.

Perhaps you can persuade Californians to adopt a different mode of government, or to make different choices in the current mode. But it is their choice whether they wish to listen to you or not.
5.26.2009 9:23pm
Stephen Clark (mail):
@ ReaderY

No, whether Californians have organized their government so as to allow an initiative in this situation is precisely the dispute that the California Supreme Court had to address. Your comment presupposes the answer to the question. My point is that the answer is utterly unclear from the mere use of the words "amendment" and "revision" in the text of the California Constitution and that to answer the question the Court had no alternative but to resort to policy analysis addressed to the relative merits of the initiative system and a consideration of whether the kinds of problems it was designed to address were present in the Prop. 8 situation.

Instead of doing that, however, the majority resorted to something lawless. In my view, the majority decided that it lacked the political will to invalidate Prop. 8 and reverse-engineered an opinion to justify that outcome, including running away from the court's own prior interpretations of the amendment/revision distinction. It also offered up a political compromise, counteracting the lawless affirmance of Prop. 8 by simultaneously giving Prop. 8 an exceedingly narrow interpretation. Rather than simply hold that Prop. 8 was an unlawful revision--as the alteration of criminal defendants' rights had been previously--the court fabricated a way to reach the next closest outcome that allowed them to declare that they were upholding Prop. 8. But the majority opinion should not be mistaken for legal reasoning.
5.27.2009 10:36am
Seamus (mail):
The majority has no substantive response--none--to the simple question, why isn't stripping a historically despised minority of equal protection, due process, and privacy rights a significant qualitiative change in the constitution?

So what? Stripping a historically despised minority of equal protection, due process, and privacy rights" may well constitute "a significant qualitative change in the constitution," but that doesn't make it a "revision" of that constitution. I don't know where you get the idea that "revision" means "amendment that makes changes with really significant consequences (especially ones we don't like)." An amendment providing that the governor should be chosen by lot would have far reaching consequences (for one, it might improve the quality of California's governors), but wouldn't for that reason be a "revision" of the constitution.
5.27.2009 11:56am
Parenthetical:
@ hazemyth

Does Werdegar elaborate on his evaluative criteria regarding the 'breadth' of the change?

No. She spends most of the concurrence focused on whether the court should cabin consideration of qualitative revisions to only those initiatives that affect the structure(s) of government. She makes a thoughtful case that the court now reads into the word "revision" a categorical distinction that does not belong there.

She did not propose any explicit guideposts for making the distinction between a qualitative amendment and a revision. Her cursory analysis of Prop. 8 borrows language that's familiar to fundamental liberty jurisprudence, but doesn't develop anything resembling a test:

Proposition 8, as construed by this court, reflects the voters' rejection of one aspect of the Marriage Cases — our conclusion that the principle of equal protection requires the state to apply the term "marriage" to legally recognized same-sex unions. (Id., at pp. 855-856.) Historically, this conclusion was new. . .

Disagreement over a single, newly recognized, contested application of a general principle does not mean the principle is dead. Equal protection's continuing vitality in the present context is shown by this court's unanimous reaffirmation of its conclusions in the Marriage Cases,. . . The measure puts one solution beyond reach by prohibiting the state from naming future same-sex unions "marriages," but it does not otherwise affect the state's obligation to enforce the equal protection clause by protecting the "fundamental right . . . of same-sex couples to have their official family relationship accorded the same dignity, respect, and stature as that accorded to all other official recognized family relationships."

I would much rather have seen 136 pages (length of majority opinion) developing criteria for making this potentially difficult distinction than wading through subject-matter distinctions. Werdegar wrote only ten pages. Apparently, Prop. 8 wasn't even a close call as she spent barely two pages disposing of the petitioner's claim.
5.27.2009 12:37pm
Stephen Clark (mail):

I don't know where you get the idea that "revision" means "amendment that makes changes with really significant consequences


From the court's own precedents.
5.27.2009 2:49pm

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