Cali supreme court overturning Prop 8?

[Andrewwhyte 1]

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Neither judges nor popular vote can "rewrite the rules" without following the rules set in place for changing them. And since Proposition 8 revised the California Constitution (i.e. altered rights already present within it) it cannot be brought to a vote via petitions.

Proposition 8 was never a legal proposition to begin with. If you think the rule of law is important, it's not valid.

Bill this seems to be quite a different argument than the one being presented to the courts. Are you arguing that the correct process was not followed? The argument in the courts seems to be that the correct process does not exist.
If the correct amending process was not followed, can you outline what the correct process would look like?

[champu 1]

So going by the rules, there's three ways to undo what Prop 8 did.

1) Get the constitution amended again to add, "...just kidding. The state of California WILL recognize marriage other than just between a man and a woman."

-or-

2) Somehow get the SCOTUS involved and prove that the state constitution is now in conflict with the federal constitution which is a no-no. (this one ain't gonna happen unless we see another federal amendment first.)

-or-

3) Completely dissolve the whole state constitution / government and start all over again. (this one really ain't gonna happen.)

I have a feeling we'll continue to see ballot measures for constitutional amendments to swing this back and forth mixed in with ballot measures for amendments to change the vote needed for an amendment to 2/3rds majority as an attempt by whichever side is "in the lead" to lock in their win.

Oh happy days...

[Andy9o8 2]

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Judges decide law UNDER a Costitution, they do not decide the constitution.

Actually, they do both:
-they rule upon the constitutionality of laws;
-they interpret the state and federal constitutions, since there are sometimes disputes over the meaning of certain constitutional provisions.

[champu 1]

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Do the state constitutions recognize the federal constitution as being superior? Is there established law that amounts to the same. I know this case does not invoke the federal constitution yet, but it seems it must eventually go that way.

The federal constitution recognizes the federal constitution as being superior. A state recognizes the federal constitution in order to be a state. I don't think it has to be explicit in the state constitution.

[billvon 3,120]

> Are you arguing that the correct process was not followed?

Correct.

>The argument in the courts seems to be that the correct process does not exist.

It's called out quite clearly. A revision requires a 2/3 vote of the legislature followed by a majority vote of the electorate. That did not happen; therefore the proposed amendment is invalid.

Proponents of Proposition 8 have claimed that it's not a revision since it didn't change anything; it merely added a few lines on the definition of marriage. However, since the proposition did in fact remove rights from a class of people who already had them, it's pretty clearly a revision.

[billvon 3,120]

>1) Get the constitution amended again
>2) Somehow get the SCOTUS involved. .
>3) Completely dissolve the whole state constitution . . .

Or 4) do it right.

[Andy9o8 2]

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I have a question for you lawyer types. Do the state constitutions recognize the federal constitution as being superior?

Essentially yes; but the actual rule is the converse of that: The Federal constitution provides that it is the supreme law of the land. Thus, everything else - federal statutes and regulations; state constitutions, statutes and regulations; municpial ordinances, local zoning board regulations, etc., etc., are subordinate to the Federal constitution.

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I know this case does not invoke the federal constitution yet, but it seems it must eventually go that way.

Not necessarily. The case will only "go Federal" if some aspect of Federal law or the US Constitution is implicated, and not otherwise. But the issue of how to properly amend the California Constitution, or whether a California proposition is properly placed on the ballot, is a matter of California law, not Federal law; and thus the California Supreme Court would have the last word on that.

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The argument that the constitution can be unconstitutional internally is, in my view, ludicrous with no precedent anywhere within the Magna Carta family tree.

I don't believe such an argument is being put forth. It's more a question of whether the CA constitution is being amended in a proper manner; and of course, the proper manner by which to amend a constitution is generally spelled out in that constitution itself.

[Andy9o8 2]

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Do the state constitutions recognize the federal constitution as being superior? Is there established law that amounts to the same. I know this case does not invoke the federal constitution yet, but it seems it must eventually go that way.

The federal constitution recognizes the federal constitution as being superior. A state recognizes the federal constitution in order to be a state. I don't think it has to be explicit in the state constitution.

Correct.

[MikeForsythe 0]

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Second, I would like to revise the California Constitution so crap like this isn't attempted again with a simple majority vote. While not a "perfect" solution, at least 2/3rd majority should be enacted.

So then if it was voted on and passed with a 2/3 majority what would be your position then? That STILL the majority should not be able to pass laws for the minority?

In Florida we passed a law a few years ago that any change to the constitution requires a 60% majority instead of the simple majority, fast forward to this last election and we had a proposition similar to your porp. 8 on the ballot and guess what, it passed by over the 60%.

At what point do you just admit that you lost and go forward? Is it fair that 74% of the people lose if they are 1% short?

You need to be careful what you wish for, what will you do if prop 8 passes the next time by 75%, try and change it to 90%?

Time and pressure will always show you who a person really is!

[Andy9o8 2]

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Second, I would like to revise the California Constitution so crap like this isn't attempted again with a simple majority vote. While not a "perfect" solution, at least 2/3rd majority should be enacted.

So then if it was voted on and passed with a 2/3 majority what would be your position then? That STILL the majority should not be able to pass laws for the minority?

In Florida we passed a law a few years ago that any change to the constitution requires a 60% majority instead of the simple majority, fast forward to this last election and we had a proposition similar to your porp. 8 on the ballot and guess what, it passed by over the 60%.

At what point do you just admit that you lost and go forward? Is it fair that 74% of the people lose if they are 1% short?

You need to be careful what you wish for, what will you do if prop 8 passes the next time by 75%, try and change it to 90%?

You make a fair point; and I think the answer is informed by whether a Proposition amounts to an amendment of the state's constitution. As I discussed, the Federal and most US state jurisdicions recognize that there's a salutary value to requiring a super-majority in order to amend a constitution. But, ultimately, will any threshold percentage be decided upon with a certain amount of arbitrariness? Sure. At that point, it's just a matter of debate over policy.

[quade 4]

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So then if it was voted on and passed with a 2/3 majority what would be your position then?

2/3 majority is the number that is used most frequently throughout the United States including the US Constitution itself. Might not be perfect, but at least it's consistent.

By the way, 61.8% is an amazingly significant number statistically speaking which is why you see so many rules that require numbers close to it. 2/3 being beyond that makes it a "fair" number in my opinion.

quade -
The World's Most Boring Skydiver

[Andrewwhyte 1]

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It's called out quite clearly. A revision requires a 2/3 vote of the legislature followed by a majority vote of the electorate. That did not happen; therefore the proposed amendment is invalid.

Really? In that case this is some of the dumbest shit I have heard in a while. Why doesn't the AG simply announce that the first part of the process is complete and the amendment will come into force if and when the Legislature completes the process? Or is the order (Leg then plebs) stipulated the other way. Either way I don't know why he didn't simply rule that the process is not yet complete. Let the proponents spend their money in court.

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Proponents of Proposition 8 have claimed that it's not a revision since it didn't change anything; it merely added a few lines on the definition of marriage. However, since the proposition did in fact remove rights from a class of people who already had them, it's pretty clearly a revision.

If it changed the position of a comma it is a change.

[livendive 8]

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You need to be careful what you wish for, what will you do if prop 8 passes the next time by 75%, try and change it to 90%?

Maybe just move somewhere that 3/4's of his neighbors aren't bigots?

Blues,
Dave

"I AM A PROFESSIONAL EXTREME ATHLETE!"
(drink Mountain Dew)

[billvon 3,120]

>Why doesn't the AG simply announce that the first part of the process is
>complete and the amendment will come into force if and when the
>Legislature completes the process?

Sounds like that might work.

[lawrocket 3]

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Neither judges nor popular vote can "rewrite the rules" without following the rules set in place for changing them.

I disagree. Here's authority for my position that the people can rewrite the rules. Judges cannot.

Cal. Cosnt. Article II, Section 1:

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SECTION 1. All political power is inherent in the people. Government is instituted for their protection, security, and benefit, and they have the right to alter or reform it when the public good may require.

Seems the Constitution guarantees the rights of the people to be assinine.

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And since Proposition 8 revised the California Constitution (i.e. altered rights already present within it) it cannot be brought to a vote via petitions.

I disagree. Here's Art. II, Sec. 8:

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SEC. 8. (a) The initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them.

I didn't write this. I didn't pull it outta my ass. This is part of the Constitution. I don't believe that any person, group of persons or judge should be empowered to ignore it.

If you were correct, it would state, "(a) The initiative is the power of the electors to propose statutes and to adopt or reject them. The California Constitution may not be amended or revised or otherwise altered by the electors."

It doesn't say that. The Cal. Const. EXPRESSLY PROVIDES that the People may make "amendments to the Constitution" through the "initiative."

You and I may both find this to be unwise. Therefore, we need to get a majority vote to amend or revise the Constitution to require a 2/3 or 3/4 vote to amend it, or to amend the Cal. Const. to strike out all of Article. II.

I find Prop 8 to be personally abhorrent. But, the argument that the People are not allowed to amend the constitution - except by judicial fiat - is, to me, far more disgusting and insidious.

Bill - I simply cannot find support for your position. In fact, it looks to fly in the face of the Constitution. In a sense, what you (and the PEtitioners and AG Brown) argue is that the Constitution should be amended by the Court to ignore Article II.

Of course, doing so would violate equal protection and procedural due process. You and I don't like what the people did, so take away the right of the people to do it. Oh, yeah - don't ask them. Just do it. It'll serve them right.

I try to keep an open mind, Bill. I understand why people feel that way. I simply cannot imagine a greater slippery slope than that.

My wife is hotter than your wife.

[Amazon 7]

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This has nothing to do with anyone's personal stance on gay marriage or who thinks whats a sin.

It has EVERYTHING to do with it. You only need to look at WHO was supporting and pumping in HUGE amounts of money... care to guess who that was????

[billvon 3,120]

>SECTION 1. All political power is inherent in the people. Government is
> instituted for their protection, security, and benefit, and they have the
>right to alter or reform it when the public good may require.

?? So if someone decides that the public good will be enhanced by the legalization of cocaine, they have the right to legalize it right then and there?

The answer, of course, is no. They must follow the amendment/revision process as outlined in the constitution.

>Here's Art. II, Sec. 8:

Here's the entire section on amendments and revisions:

=========
CALIFORNIA CONSTITUTION
ARTICLE 18 AMENDING AND REVISING THE CONSTITUTION

SEC. 1. The Legislature by rollcall vote entered in the journal,
two-thirds of the membership of each house concurring, may propose an
amendment or revision of the Constitution and in the same manner may
amend or withdraw its proposal. Each amendment shall be so prepared
and submitted that it can be voted on separately.

SEC. 2. The Legislature by rollcall vote entered in the journal,
two-thirds of the membership of each house concurring, may submit at
a general election the question whether to call a convention to
revise the Constitution. If the majority vote yes on that question,
within 6 months the Legislature shall provide for the convention.
Delegates to a constitutional convention shall be voters elected from
districts as nearly equal in population as may be practicable.

SEC. 3. The electors may amend the Constitution by initiative.

SEC. 4. A proposed amendment or revision shall be submitted to the
electors and if approved by a majority of votes thereon takes effect
the day after the election unless the measure provides otherwise. If
provisions of 2 or more measures approved at the same election
conflict, those of the measure receiving the highest affirmative vote
shall prevail.
===========

Summary:

18-1 - the legislature can propose an AMENDMENT or REVISION to the constitution.
18-2 - the legislature can call an election to authorize a constitutional convention.
18-3 - the people can AMEND the constitution, not revise it, by initiative.
18-4 - A proposed (not initiated) amendment or revision can be submitted to the electorate and voted on.

It is pretty clear, right there in black and white, that the constitution cannot be revised by an initiative.

[lawrocket 3]

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Do the state constitutions recognize the federal constitution as being superior? Is there established law that amounts to the same.

Even if the State Constitutions do not explicitly recognize it, the US Const. trumps. The US Const. provides a floor of rights that, under the 14th Amendment, no state can breach. Note - it has only been hrough the last 50-60 years that most of the guaranteed rights have been expressly "incorporated" to the states.

This means that a state cannot allow slavery, because the federal constitution bans it.

States can gratnt MORE rights to its people, though. The granting of rights for gays will not affect the US Const. The denial of them may violate the 14th Amendment - though this has not yet been held.

My wife is hotter than your wife.

[lawrocket 3]

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It's called out quite clearly. A revision requires a 2/3 vote of the legislature followed by a majority vote of the electorate.

That's ONE way, Bill.

Here's more.

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The electors may amend the Constitution by initiative.

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A proposed amendment or revision shall be submitted to the electors and if approved by a majority of votes thereon takes effect the day after the election unless the measure provides otherwise.

There are a couple of ways, Bill. Personally, I think the Legislative route is the best way to do it. But - the law says what it says.

My wife is hotter than your wife.

[billvon 3,120]

>The electors may amend the Constitution by initiative.

Agreed. They can AMEND, not REVISE, the constitution by initiative.

>A proposed amendment or revision shall be submitted to the electors
>and if approved by a majority of votes thereon takes effect the day after
>the election unless the measure provides otherwise.

Agreed. Once the legislature proposes a revision _or_ amendment it can be voted upon.

> But - the law says what it says.

You are exactly correct. And it does not say that the constitution can be revised by initiative. The only legal ways to do it are:

1) legislature proposes it; people vote on it or
2) constitutional convention.

This was explicitly upheld in the 1990 court case Raven v. Deukmejian. An initiative to amend the constitution was found to remove basic rights from defendants, essentially limiting their rights to those under Federal law. Since that is a revision rather than an amendment to the California constitution, it was deemed that the initiative process could not be used for the revision.

[kelpdiver 2]

The amendment versus revision issue suggests that if the initiative had been certified before the state court decision, it would still be an amendment. But since it came afterwards, it's a revision.

[billvon 3,120]

>The amendment versus revision issue suggests that if the initiative
>had been certified before the state court decision, it would still be an
>amendment. But since it came afterwards, it's a revision.

I think that even if it came before it it would be a revision. The decision was not that gays now have the right to marry; the decision was that, by the California constitution, they always had that right.

[Andrewwhyte 1]

Where are the terms 'amendment' and 'revision' legally defined for the purposes of the California constitution?

[SimonBones 1]

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It has EVERYTHING to do with it. You only need to look at WHO was supporting and pumping in HUGE amounts of money... care to guess who that was????

No I don't care to guess, and I don't care who it was. Again, it has nothing to do with the supreme court considering reversing an amendment that was legally put into place by a fair and square vote by California voters.

Like the results or not, it was a fair vote. It is not the place of the supreme court to take away or over rule the voting power of the people. This is true irrelevant of what it is the people want to vote for/against.

Like I said above, the results of the vote for Prop 8 may be thought of as unfair for some, but to have your right to fair voting power removed by the supreme court is unfair for all.

108 way head down world record!!!
http://www.simonbones.com
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[billvon 3,120]

They are defined primarily by subsequent legal interpretations. A few of them include:

"The revision/amendment analysis has a dual aspect, requiring us to examine both the quantitative and qualitative effects of the measure on our constitutional scheme. Substantial changes in either respect could amount to a revision." (Raven v. Deukmejian 1990)

"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.” (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization 1978)