What If the Voters Overturn Other Constitutional Rights Decisions?

A common argument against the constitutionality of Prop. 8 was to hypothesize what would happen if voters overturn other constitutional rights decisions, or for that matter repeal expressly secured constitutional rights:

[U]nder the majority's view, it is not clear what sorts of state constitutional constraints limit the power of a majority of the electorate to discriminate against minorities. As petitioners point out, “imagine if Perez v. Sharp, 32 Cal.2d 711 (1948), striking down California's ban on interracial marriages, had been decided on state constitutional grounds rather than federal constitutional grounds. And imagine if a bare majority had attempted to overturn that landmark ruling by enshrining the ban into the Constitution.” Other equally unattractive hypotheticals suggest themselves. Under the majority's reasoning, California's voters could permissibly amend the state Constitution to limit Catholics' right to freely exercise their religious beliefs (Cal. Const., art. I, § 4), condition African-Americans' right to vote on their ownership of real property (id., § 22), or strip women of the right to enter into or pursue a business or profession ( id., § 8). While the federal Constitution would likely bar these initiatives, the California Constitution is intended to operate independently of (art. I, § 24), and in some cases more broadly than (see, e.g., Fashion Valley Mall v. National Labor Relations Board (2007) 42 Cal.4th 850, 857-858), its federal counterpart. The majority's holding essentially strips the state Constitution of its independent vitality in protecting the fundamental rights of suspect classes. And if the majority does not avow that such broad constitutional changes could be made by amendment, but only more “limited” ones, then I disagree with such an implicit distinction. As discussed, denying gays and lesbians the right to marry, by wrenching minority rights away from judicial protection and subjecting them instead to a majority vote, attacks the very core of the equal protection principle.

And these hypotheticals could likewise be raised not just as to the initiative amendment process, but also the legislative revision process, since one can imagine the same voters' electing enough legislators who would support those voters' preferences. (To be sure, that isn't politically likely, but neither are the other hypotheticals particularly likely; they certainly haven't been enacted in the past, even in times in which they might have been politically more plausible.) So Justice Moreno's argument can't easily be cabined in a way that would apply to the narrow question of what's an amendment and what's a revision -- it would equally cast into doubt (or not cast into doubt) the people's power to amend the constitution through legislative proposal or through a constitutional amendment.

But it seems to me the answer to this is clear: Those amendments would indeed be legally permissible changes to the California Constitution. (One might distinguish limitations on voting rights, on the grounds that they would entrench themselves, by stripping some people of the legal right to repeal those amendments; but wherever such a constitutional principle might or might not reside, that doesn't apply to same-sex marriage, or many other examples.)

They would be immoral. In extreme cases, they might constitute a sufficient moral justification for revolution (a matter I flag simply because the possibility can't be denied, and because of course our own U.S. Constitution is built in large part on a revolution against the existing order, plus likely a slightly later, peaceful and broadly accepted, coup against the existing order). They would violate the U.S. Constitution, and thus would be struck down on those grounds. But under the California Constitution, it seems to me that they should be understood simply as the sovereign changing the Constitution in a way that's very bad but that is consistent with that constitution.

In any event, what makes those provisions wrong is not that they are legally "revisions" rather than "amendments" and thus illegal. What makes them wrong is that they are morally wrong and thus immoral. But ultimately that judgment about what is morally wrong, as I mentioned, is under the California Constitution left to the sovereign people, and not the sovereign's servants in the state supreme court.


Not to mention that the theory advanced by Moonbeam Brown and the homosexual activists would place us under a judicial oligarchy.

Apparently that theory is catching on though. Two Justices in MA wanted to declare themselves benevolent dictators of the people in the same manner.
5.26.2009 5:54pm
DJ (mail):
The 19th Century natural law premise that it is the duty of a jurist to set aside any law that exceeds the police power of the state is resoundingly dead.
5.26.2009 5:56pm
Stevie Miller (mail):
Morals ... schmorals.

I think we can all imagine a scenario, even in America -- a Philip Roth imagined America -- where the good majority of people could be convinced to discriminate against an unpopular minority. Heck, even in the most civilized, moral and upstanding societies, you might even imagine a world where good people turned their heads because the minority wasn't particularly popular and always seemed to be pulling things that turned the majority against them.

"Serves them right" mentality, as the unpopular minority gets what they got coming to them, in the eyes of the righteious, confident moral majority.

Heck, it's a good thing so many good people like Prof. V. are speaking out against the immoral vote of Prop 8, which discriminates and distinguishes against an unpopular minority, even though we all know he's straight as an arrow with 2 little boys to show for it.

Because sometimes the unpopular minority needs the voices of good moral people, because they'd sure want someone to speak for them and theirs, were they the unpopular minority that the majority felt fit to treat ... differently based on the minority characterization, right? Thanks for bringing up the "morals" thing, Prof. V., and adding your strong authoritative voice to the mix speaking out against the moral majority vote.
5.26.2009 6:02pm
Putting Two and Two...:
I don't know about any of the hypothetical cases you raise, but I'm pretty sure a constitutional amendment limiting the number of simultaneous threads a VCer can initiate on one subject in one day would pass in a landslide.
5.26.2009 6:08pm
How about some discussion of the resolution of the question of the status of same-sex marriages performed before Prop. 8 passed?
5.26.2009 6:14pm
einhverfr (mail) (www):
Ok... So the question that needs to be raised is: Is it possible for an initiative to strike so deeply at equal protection as to constitute a revision? Of course the 14th Amendment prevents this question from being more than a mere hypothetical one, but it is interesting to ask.....

Suppose California passed an initiative stating that "State benefits of all sorts, and the right to own or purchase property in this state shall be reserved exclusively for English speakers, and non-English speakers shall be subject to double fines or prison sentences for any civil or criminal violations of law." I would argue that this would be such of a deep change to the idea that folks deserve equal protection as to constitute a revision.
5.26.2009 6:32pm
IB Bill (mail) (www):
Is it possible for an initiative to strike so deeply at equal protection as to constitute a revision?

My instinct is yes, of course. However, all the examples I can think of run afoul of the various rights in the U.S. Constitution, which I believe apply to the states, too.
5.26.2009 6:47pm
Cooked Chicken:
A state constitution is not a suicide pact. What if a slim majority of voters in California approves an amendment to the state constitution repealing all rights and making Ryan Seacreast Emperor. As Thomas Jefferson once wrote, "To lose our country by a scrupulous adherence to the written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the ends to the means." There are some amendments that are so absurdly wrong that they undermine fundamental rights essential to preserving a state of ordered liberty in a society -- natural rights. I don't think you can really take these away from people even if the constitution is amended.
5.26.2009 8:27pm
it would equally cast into doubt (or not cast into doubt) the people's power to amend the constitution through legislative proposal or through a constitutional amendment

Or through a constitutional convention, of course. And the only appeal from that is armed revolution, but alas the majority wins in that case, too.

Democracy sucks, huh? The problem with a government of and by The People has always been that The People is unfortunately largely made up of people.
5.26.2009 8:48pm
John Burgess (mail) (www):
Whoever said that 'the Constitution isn't a suicide pact' was actually wrong. All it takes is a sufficient majority to completely undo whatever it says, whatever it stands for, and make it something completely different.

Yes, that might fundamentally change the nature of the US. It's surely a danger, but it's also the beauty of our Constitution. The people are sovereign. If they want to fundamentally change their form of government, their recognition of rights, they have a mechanism that allows them to do so. They do have the power and the right to commit collective suicide, at least insofar as we now appreciate our Constitution.

For some states, it only takes 51% of the cast votes. For the federal government, it takes considerably more horsepower, but it's achievable.

I'd argue that this power is why we need a professional media that focuses on objective reporting rather than being market driven. But doesn't appear to be a winning argument as the media is not performing professionally as journalists.
5.26.2009 9:06pm
I'm not sure that any of these posts explicitly address the amendment/revision tension. They read, to me, as a much broader defense of majority rule in the constitutional process. They don't seem to require the simple majority of the amendment process, tho.

Having such a minimal standard to (re)define fundamental rights seems dangerous to me. Much less so, given the protections of the federal constitution... But still... Imagine if it took only a simple majority to abrogate the 14th amendment.
5.26.2009 9:38pm
Kevin Forrester (mail) (www):
The decision was about the power of the people to amend their constitution. The court did not solve, nor did it address the tyranny of the minority vs. the tyranny of the majority problem, but it did remind everyone that the power to amend the constitution is in the hands of the people who wrote it. As for the opposite-sex vs. same-sex marriage debate, see: . . . a rose by any other name . . .
5.26.2009 9:49pm
TGGP (mail) (www):
Is the "coup" you refer to the replacement of the Articles of Confederation?
5.26.2009 10:00pm
first history:
I daresay California voters would approve any one of the hypotheticals. In 1963 California voters approved 65%-35%Proposition 14, which repealed the Rumford Fair Housing Act. Fortunately, the repeal itself was overturned by the US Supreme Court in a 5-4 vote in Reitman v. Mulkey, 387 U.S. 369 (1967). You would probably get the same vote today on the opposite side of the question.
5.26.2009 10:16pm
Milhouse (www):
To refute this extremely silly argument, one need merely ask J Moreno what is to prevent 2/3 of both houses and majorities in the legislatures of 3/4 of the states from repealing the fourteenth amendment, or for that matter the first. The answer, of course, is "nothing but their good sense", but it would be interesting to hear his answer, after he stopped spluttering.
5.26.2009 11:16pm
Brett Bellmore:
With respect to the Constitution not being a suicide pact, I've never noticed anybody bother to claim that, save that they meant that it was a suicide pact, and as such should be violated.

Generally without bothering to defend the notion that following it really WOULD be suicidal.
5.27.2009 6:13am
Cooked Chicken: What if a slim majority of voters in California approves an amendment to the state constitution repealing all rights and making Ryan Seacreast Emperor.

Getting back on topic, that would seem to have such sweeping impact on all three branches of government that it would clearly qualify as a revision rather than an amendment.
5.27.2009 9:44am
Soronel Haetir (mail):
On the topic of constitution as suicide pact, I prefer to think of it as a murder contract. If government gets too far out of line for the populace it will be hung.
5.27.2009 11:02am
The California Constitution has already been amended to eliminate the state constitutional exclusionary rule (to the extent that it was broader than the federal rule).

That would seem to "attack the very core" of the search and seizure/self-incrimination "principle."

Am I the only one who gets the feeling J. Moreno is only posturing? I just can't believe he really means everything he says in his dissent. He's knows there's a solid majority on the other side and he's pandering to some interest group or another. Perhaps it's a hail Mary pass for that Supreme Court nomination that just slipped out of his hands.
5.27.2009 11:46am
Jess14 (mail):
It's a very dangerous thing...tyranny of majority, taking away rights of the minority. I don't know if we need to jump to any conclusion like that, but it's certainly possible, or at least legal.
Hopefully, now that voters' have the ultimate say in 2010, things can be set right with enough preparation. This video:

provides commentary for the future on a more positive note.
5.27.2009 2:15pm
Rich Rostrom (mail):
Any principle of government by which a virtuous minority can override an abusive majority also enables an abusive minority to override a virtuous majority.

Incidentally - in the same election in which California voters approved Prop 14 65-35, they also voted for Johnson over Goldwater 60-40. That suggests support for Prop 14 was not based solely on racism.
5.27.2009 8:58pm

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