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Popular Sovereignty:

On my initial quick read, it seems to me that the California Supreme Court's cases (1) recognizing a right to same-sex marriage under the California Constitution, and (2) today, recognizing that Proposition 8 validly amended the Constitution and thus abrogated the right are excellent examples for any discussion -- in class or otherwise -- about popular sovereignty.

Three Justices reached a result different from the one that they had initially reached, based on their judgment that the people's views prevail over the Justices'. And they rebutted (in my view persuasively, but in any event clearly and informatively) the arguments to the contrary, both arguments focused on the revision vs. amendment question and arguments focused on the people's supposed legal inability to alter supposedly "fundamental" or "inalienable" rights. On the other side, there was able briefing to the contrary, plus Justice Moreno's partial dissent (which I've only skimmed at this point, though I'll read it later today). Put together, this seems to me a great case study of the recurring debates about popular sovereignty, constitutionalism, the role of courts, and more broadly the mixed majoritarian and antimajoritarian nature of American constitutions.

Zach (mail) (www):
I don't understand CA law a bit. Would these initiatives be valid in light of today's decision:
1. An amendment eliminating the right to amendments via petition
2. An anti-miscegenation amendment

My understanding from the discussion here and elsewhere is that these would be OK (if entirely implausible); is that right?
5.26.2009 3:24pm
KWC (mail):
The statement: "today, recognizing that Proposition 8 validly amended the Constitution and thus abrogated the right [to same-sex marriage]" is not wholly accurate.

The Court read Prop. 8 as narrowly as possible. Interpreting In re Marriages as involving many holidngs, including: (1) the right to establish a relationship with all the rights of marriage, regardless of whether the term "marriage" is used; and (2) the right to have thet term "marriage" used. The Court held that Prop 8 only affected the second of those two holdings.

Thus, under today's ruling, same-sex couples still have the right to establish a relationship with all the rights of marriage just not to call it "marriage." But with what mechanism? The Court doesn't really say, though Werdegar's concurrence calls upon the legislature to make sure this option exists. The result, to me, would seem to be an "upgrading" of Domestic Partnership law to read: "Domestic Partnerships shall enjoy all the rights of marriage," something that -- despite the lies of the Yes on 8 campaign -- is not the case.

Right now it seems everyone is focusing on the "result" without really seeing what the Court actually did here.
5.26.2009 3:31pm
Dave N (mail):
Zach,

1. Probably so (though I doubt it would pass)

2. No, because it violates the United States Constitution (Loving v. Virginia, 388 U.S. 1 (1967)) and the supremacy clause would prevail.
5.26.2009 3:33pm
Jam:
Does amending a State's Constitution follow the definition of "a Republican form of government?"

Just asking.
5.26.2009 3:33pm
Jam:
Let's try this again.

Does amending a State's Constitution via a poll/election follow the definition of "a Republican form of government?"
5.26.2009 3:35pm
Jam:
Let's try this again.

Does amending a State's Constitution via a poll/election follow the definition of "a Republican form of government?"
5.26.2009 3:35pm
BerkeleyBeetle:
Zach and Dave N,

Eliminating the right to amendments via petition could plausibly be seen as a revision under this decision, "altering the basic governmental framework set forth in our Constitution."
5.26.2009 3:36pm
KWC (mail):
Zach:

I would say that "1" would possibly not be okay because it would fundamentally alter our system of government and this is the role of revisions.

However, I would say that "2" would be okay. What would happen, though, is the California Supreme Court would have to strike it down as violating the United States Constitution. The same conflict doesn't (yet) exist with same-sex marriages.

This raises an interesting point though. If the California Supreme Court believed that it did violate the Equal Protection clause of the 14th Amendment, then it would have been bound to strike it down on those grounds. Of course, we all know that the pro-gay-marriage deliberately didn't raise that issue for fear of a conservative SCOTUS reversal. But it strikes me that not raising it explicitly wouldn't be good enough ground to avoid it. If, say, in Zach's example the parties didn't raise it, would the Supreme Court be free to ignore the US Constitution? Certainly not.
5.26.2009 3:37pm
KWC (mail):
I'd like to point out that I was right and Eugene was wrong, incidentally. There was NO WAY the California Supreme Court was going to undo those estimated 18,000 marriages without explicit retroactivity, nor should they! Not only that, but Eugene's suggestion that they would turn them all into domestic partnerships was not plausible either, as I commented before.
5.26.2009 3:40pm
Zach (mail) (www):

No, because it violates the United States Constitution (Loving v. Virginia, 388 U.S. 1 (1967)) and the supremacy clause would prevail.


@Dave - thanks; this means that it'd be fine aside from Loving, though, right? So no right is conferred by the CA constitution that cannot be taken away or limited by amendment?
5.26.2009 3:40pm
Dave N (mail):
BerkeleyBeetle,

The reason I answered the way that I did was that California voters GAINED the right to initiative and referendum through an amendment to the California Constitution pushed by Governor Hiram Johnson.

If the voters achieved that right through a constitutional amendment, it would seem odd to argue that repeal of this state constitutional amendment would constitute a revision.
5.26.2009 3:52pm
Anthony A (mail):
Regarding abolishing the right of initiative, it seems pretty certain that it would constitute a "revision", but a revision must be approved by a simple majority of the voters; the difference is in the process required to place it on the ballot.

An anti-miscegenation amendment may have to be struck down on federal constitutional grounds, though it could be considered too vague to have any effect, as races are fuzzy sets, and defining the borders of fuzzy sets is *difficult*. Under an anti-miscegenation law, who would Tiger Woods or Barack Obama be restricted from marrying?
5.26.2009 4:03pm
josh bornstein (mail) (www):
Zach,
Well, if we can assume that you mean, "...aside from Loving, AND all other related federal case law/statutes, etc. . . .", then I think the answer is 'yes.'

If we go in agreeing that federal law has no legal impact on California law (for the purpose of your argument, I think), then California can do whatever it wants. That is the point of amending (or revising) the Constitution.

That's also true for the US Constitution, of course. There is no right so sacred that it could not be taken away by amending the Constitution. We could eliminate, say, the rights of Whites (or, Blacks, Jews, Catholics, tall people, etc.) to own property. Take away completely the right to own a gun. Trying Prohibition (again). Eliminating the right to worship. And so on. I am obviously ignoring the actual odds that any such change would survive the amendment process, but that was not your point. Every single right (via Constitution, legislative process, handed-down-by-God, judge-made, et al) can be taken away by amending a constitution. True for the US in general. And true for the specific state of California (subject to complying with federal law in non-hypothetical situations).

Okay, maybe I can imagine California enacting some law which (per your hypo) was not touched by federal law, but still violated some international treaty. But I'm not sure if a California law that did this would be invalidated as a matter of law. (Well outside my area of knowledge.)
5.26.2009 4:04pm
Soronel Haetir (mail):
Zach,

Such is the nature of California constitutional law. Be glad it's a bit harder at the federal level.
5.26.2009 4:06pm
PersonFromPorlock:
Just for the heck of it, let me point out that in light of court decisions since Loving about the importance of diversity to education, anti-miscegenation laws might now be seen as serving a constitutionally justifiable purpose in preserving the 'feedstock' of diversity.

OT? Moi?
5.26.2009 4:13pm
MarkField (mail):

OT? Moi?


I don't know about OT, but perhaps distracting.

Now I'm going to go back and finish that poem I was writing...
5.26.2009 4:22pm
Zach (mail) (www):
Thanks for all of the replies... interesting how a readily malleable constitution changes everything.

Anthony A, Obama's race would've been easy to classify in 1890 (link); his kids, on the other hand... I never understood why there were quadroon and octroon categories but no three-quarteroon category.
5.26.2009 4:27pm
Michael Edward McNeil (mail) (www):
That's also true for the US Constitution, of course. There is no right so sacred that it could not be taken away by amending the Constitution. We could eliminate, say, the rights of Whites (or, Blacks, Jews, Catholics, tall people, etc.) to own property. Take away completely the right to own a gun. Trying Prohibition (again). Eliminating the right to worship. And so on. I am obviously ignoring the actual odds that any such change would survive the amendment process, but that was not your point. Every single right (via Constitution, legislative process, handed-down-by-God, judge-made, et al) can be taken away by amending a constitution. True for the US in general. And true for the specific state of California (subject to complying with federal law in non-hypothetical situations).

Not exactly. The right of each state to have equal representation in the Senate with every other state explicitly requires unanimity amongst the states before the U.S. Constitution could be amended in such a matter.
5.26.2009 4:37pm
AJK:

The right of each state to have equal representation in the Senate with every other state explicitly requires unanimity amongst the states before the U.S. Constitution could be amended in such a matter.


How do you figure?
5.26.2009 4:51pm
JCC:
An anti-miscegenation amendment

Race has a very long history in the US, something totally vacant from the issue of sexuality. Obviously, this would be mooted by prior Supreme Court precedent.

What people are still not iterating on the 14th is that this does not affect a Class of People. "The gays and the straights and the whites and the spades" can all marry a member of the opposite gender. The fact that this is unsatisfactory to some is not relevant. A law that allows men to marry a man or woman but only lets women marry men... would and should be tossed out under Equal Protection.
5.26.2009 4:55pm
Dan Weber (www):
How do you figure?

Article V:

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; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
5.26.2009 5:01pm
Putting Two and Two...:

and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.



Uh... Proposed Amendment #1: repeal that line through the usual process requiring 2/3s and 3/4s.

Proposed Amendment #2: pick a state, any state, and deprive it of its equal suffrage. I nominate Texas.
5.26.2009 5:22pm
Loving vs Baker:
Why do people continually reference Loving v Virginia, when that decision linked marriage to procreation? One might not agree with Loving, but you can't cut out portions of the decision that do not jive with your world view.

I further ask why people ignore Baker v. Nelson. BAKER is the appropriate Federal Precedent, not Loving. Several Courts have recognized it's binding effect as a matter of Federal Constitutional Law, including some Pro-SSM judges.

One can try to pretend that there are no distinctions between race and the fundamental difference of sex, however reality dictates a different view.

I don't think it conductive to this debate to post snarky "Exam Questions" that implicitly refer to anyone with an opposing view as a racist bigot. An example of such an "exam question" would be:

"Would it constitute a revision or amendment to the California Constitution to restrict the term "marriage" to opposite sex couples of the same race while, while not otherwise affecting the fundamental constitutional rights of mixed-race couples."

"Please keep in mind when answering this question not to refer to the Federal Constitution or whether the provision at issue is wise or sound as a matter of policy or whether we, as individuals, believe it should be a part of the California Constitution."

Reasonable minds can disagree on this issue without resorting to such tactics. I am firmly convinced that this particular issue has caused more than a few to take leave of their senses.
5.26.2009 5:27pm
Zach (mail) (www):
Re: Loving; I didn't ask the question ignorant of the difference between the underlying issues, and it's addressed here answering my question (basically, "What, if any, individual rights are safe from amendment in CA?") and not as precedent that should've been followed today.

I suppose you can be bothered that it seems like a stupid exam question (and given that the answer is apparently straightforward, it would be) if you like. By including the snarky exam question about an anti-initiative initiative I'm implicitly referring to anyone with an opposing view on marriage as what, exactly?
5.26.2009 5:57pm
Dan Weber (www):
Uh... Proposed Amendment #1: repeal that line through the usual process requiring 2/3s and 3/4s.

Any state that feared it was at risk of being deprived could appeal to SCOTUS that the amendment was in violation of the amendment process, since it was going to deprive it of equal representation. And I think that the state would probably succeed, although we'll never find out.

Of course, a lot of the Constitution depends upon people in government having basic respect for it. If the President and the military and Congress and its aides and SCOTUS and its clerks and the appellate circuit decide to just ignore it, we don't have any recourse besides armed rebellion. There's no money-back guarantee.
5.26.2009 6:12pm
ShelbyC:

Uh... Proposed Amendment #1: repeal that line through the usual process requiring 2/3s and 3/4s.

Proposed Amendment #2: pick a state, any state, and deprive it of its equal suffrage. I nominate Texas.


Doesn't work...


Amendments... shall be valid to all Intents and Purposes, as Part of this Constitution ... Provided that no ... State, without its Consent, shall be deprived of its equal Suffrage in the Senate.


A strict reading of this would say that no amendments are valid if one amendment deprives a state of equal sufferage. I think it's safe to say that the intent is that only the offending amendment(s) are affected though.
5.26.2009 7:18pm
Oren:
What about 2/3rds of the States doing the following:

We, the following Sovereign States, $STATES , do hereby repeal the Constitution of 1787 and replace it with the following one:

(1) All the terms and provisions of the 1787 Constitution, including the laws, policies, regulations, rulings, appointments, treaties, debts, personnel of all types (inter alia, those elected, appointed, commissioned, enlisted, civil-service, judicial, executive, legislative, Masonic), all Federal property and functions and insignia are hereby incorporated by reference in the exact state as they were under the same except as explicitly amended by Arts (2) and (3).

(2) The final two clauses in the Article V are stricken.

(3) Texas will receive 1 Senator, who cannot vote and must wear a funny hat whenever on the Senate floor at such times time when the Senate is in session.


Hard to see that as any less legitimate that the 1787 Constitution, which was pretty much adopted in the same fashion.
5.26.2009 9:02pm
Oren:
As an aside, quite a few Constitutional scholars believe that the final clause of Art V can be amended by Art V, since such an amendment would not violate the terms of Art V.

After that, it's fair game!
5.26.2009 9:03pm
Jam:

Dan Weber (www):
Any state that feared it was at risk of being deprived could appeal to SCOTUS that the amendment was in violation of the amendment process, since it was going to deprive it of equal representation. And I think that the state would probably succeed, although we'll never find out.


Texas, along the other southern administrative federal subdivisions, were denied equal suffrage once already because there is no Constitutional authority explicitly delegated to the SCOTUS to consider the question. Otherwise the so called 14th amendment would be null and void.

We continue to become more and more like the Estados Unidos de Mexico.
5.27.2009 10:58am

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