Ornery.org
  Front Page   |   About Ornery.org   |   World Watch   |   Guest Essays   |   Contact Us

The Ornery American Forum Post New Topic  Post A Reply
my profile login | register | search | faq | forum home

  next oldest topic   next newest topic
» The Ornery American Forum » General Comments » California Proposition 8 Ruling Tuesday May 26th (Page 3)

 - UBBFriend: Email this page to someone!   This topic comprises 4 pages: 1  2  3  4   
Author Topic: California Proposition 8 Ruling Tuesday May 26th
The Drake
Member
Member # 2128

 - posted      Profile for The Drake   Email The Drake   Send New Private Message       Edit/Delete Post   Reply With Quote 
quote:
Originally posted by jimskater:
As for anyone else wanting to get married. Not gonna happen any time soon.

Not in California. One more good reason to get out of that hellhole of the west coast.

Head for New England, the birthplace of American freedom! The full list:

MA, CT, IA, VT, ME

Equivalent civil union:

NJ, NH

Limited civil union:

HI, CO, DC, OR, WA, MD

Posts: 7707 | Registered: Oct 2004  |  IP: Logged | Report this post to a Moderator
Gaoics79
Member
Member # 969

 - posted      Profile for Gaoics79   Email Gaoics79   Send New Private Message       Edit/Delete Post   Reply With Quote 
quote:
Except where they explicitly said that you should make such assumptions (per the 9th and 10th amendments, specifically)
We may be going far afield here. Are we talking about the Federal constitution generally now? If so, where does it say that you should imply rights that never existed before into the text?

quote:
And this is the crux of our disagreement. Whether or not the ratifiers of the Equal Protection Clause intended for same-sex marriages to be a consequence, we can be absolutely certain that they did intend for that clause to be used to enforce equal protection under law to minorities suffering discrimination, no matter how long before or after its ratification such discrimination was considered to be acceptable.
Really? On what do you base this notion that "minorities" as a general class (which could include everyone from felons to infants) were the blanket intended beneficiaries of the equal protection clause?

quote:
The only people who can judge if the laws and traditions of previous generations were unfairly discriminatory are those of the current generation.
Yes, because they are alive and only living people can judge. However, neither living people nor dead people are allowed to rewrite constitutions in your legal system without going through certain designated processes.

quote:
We can be quite certain that the ratifiers knew this, because it is an axiom at the very heart of the EPC. Trying to say that it can only be applied to traditions which might have been considered discriminatory from the perspective of people who lived a century before us kills the principle entirely to gut, stuff and mount it on a wooden board. There is no question that it was ratified into the Constitution with a view to protecting the rights of into the indefinite future, and as such it relies on constant vigilance; I cannot see how you think it can do that (or was ever intended to do that!) with eyes of dead glass.
Again, you assert the false dilemma between a static forever crystallized constitution and one that may be changed at the whim of a court. Of course the drafters did indeed contemplate the very evolution you mention. That's why there's an amendment process. The constitution is specifically designed to be subject to change, through said process.

The problem isn't that the constitution can't evolve, because of course it can and has many times in the past. The problem is that certain groups don't want to play by the rules actually set out in the constitution.

I also note, as I did earlier, that if you find the amendment process too onerous and difficult to achieve, there is yet another way to change the law. It can be done through gardne-variety statute. So long as there is nothing expressly anto-ssm in the pertinent constitution, there is nothing in the world preventing the democratically elected legislature from passing a law to legalize same sex marriage.

Posts: 7629 | Registered: Mar 2003  |  IP: Logged | Report this post to a Moderator
Jordan
Member
Member # 2159

 - posted      Profile for Jordan   Email Jordan   Send New Private Message       Edit/Delete Post   Reply With Quote 
quote:
Jason:
quote:
Labour laws would almost certainly pass strict scrutiny, never mind intermediate scrutiny or rational basis (which are more likely standards). And for strict scrutiny to even be applied, infancy would need to be determined to be a suspect class.
Ahem, tell that to the Lochner Era Supreme Court.
I note in particular that the crucial case regarding child labour was later "overturned and repudiated," so I cannot see how this observation is any worse than neutral to my assertion?

quote:
Strict scrutiny is, after all, merely a legal test created by judges. There is no mention of "strict scrutiny" in the constitution, that I am aware of.
It is also well-established in precedent, and is one of the most powerful and well-recognised instruments used by courts to evaluate the efficacy and rationality of a challenge to equal protection against a suspect class.

quote:
What can be made today in a court can be unmade tommorrow.
I'm absolutely perplexed that you take issue with what you consider to be unfaithfulness to context and intent, and yet appear to be challenging me based on a hypothetical scenario in which the courts come to an exotic and highly unlikely conclusion based on selectively ignoring decades of firm precedent. Indeed, all through the last two paragraphs I've been looking back at the question we initially set out to discuss and asking myself: how on earth did we get here?! [Confused]

[ May 26, 2009, 12:38 PM: Message edited by: Jordan ]

Posts: 2147 | Registered: Nov 2004  |  IP: Logged | Report this post to a Moderator
Jordan
Member
Member # 2159

 - posted      Profile for Jordan   Email Jordan   Send New Private Message       Edit/Delete Post   Reply With Quote 
quote:
cherry:
The fact is the court doesn't like the law. So they'll find any excuse they can to negate it. In fact, that same dictatorial mentality applies to the way they ignored the California constitution before to legalize gay marriage in the first place. They're going to do what they want to do to make the law say what they want to say. It's really as simple as that.

The only question now is if they'll get away with it.

Again.

Bearing in mind your previous grace when the shoe was on the other foot, congratulations on being proven wrong; I hope your confidence in the Californian judiciary's commitment to good jurisprudence has been somewhat restored. I cannot resist inviting you to seriously reflect upon your earlier statement, however. I strongly suspected that this is how they would decide, but for far more charitable reasons.
Posts: 2147 | Registered: Nov 2004  |  IP: Logged | Report this post to a Moderator
Jordan
Member
Member # 2159

 - posted      Profile for Jordan   Email Jordan   Send New Private Message       Edit/Delete Post   Reply With Quote 
quote:
Jason:
Again, you assert the false dilemma between a static forever crystallized constitution and one that may be changed at the whim of a court. Of course the drafters did indeed contemplate the very evolution you mention. That's why there's an amendment process. The constitution is specifically designed to be subject to change, through said process.

Jason, I am not asserting any dilemma; I am explaining to you how your position looks from my understanding of the Equal Protection Clause.

You seem to think that I doubt the EPC to have a constant meaning and intent, that I see it as something that fluctuates and evolves. I absolutely don't, and this is what I consider to be the fundamental error that underlies your reasoning. The EPC has one meaning and one intent; neither has changed since it was first ratified. The EPC is intended to repudiate laws and traditions that were once considered acceptable, but in the light of hindsight are seen to be discriminatory.

The context in which the law was ratified is clear. The intent is clear. The meaning is clear. What is not clear is why you are adding an unrecognised and unintended limitation to the text: "…except when such discrimination would have been considered fair by the people who ratified this text, insofar as it is possible to guess."

Let me try another approach. We want to offer the same protections to citizens that the Equal Protection Clause offered in 1868, but with the advanced hindsight of over a century and a quarter of social change. I say that the Equal Protection Clause is sufficient, since it never prohibited hindsight—indeed, it demands it—or excluded the traditions or laws extant during (or after) its ratification from criticism. You seem to be saying that we would need to add the Equal Protection Clause again (and yet again, eventually) to the Constitution as a new amendment for it to continue to apply in the manner that it was intended to apply in the first place!

[ May 26, 2009, 01:38 PM: Message edited by: Jordan ]

Posts: 2147 | Registered: Nov 2004  |  IP: Logged | Report this post to a Moderator
jimskater
Member
Member # 181

 - posted      Profile for jimskater   Email jimskater   Send New Private Message       Edit/Delete Post   Reply With Quote 
Reaction at 36 pages through the 185 page decision. The court seems to be relying on the In re Marriages decision, which specifically recognized:

quote:
...the constitutional right to establish, with the person of one’s choice, an officially recognized and protected family relationship that enjoys all of the constitutionally based incidents of marriage or, more briefly, the constitutional right to establish an officially recognized family relationship with the person of one’s choice
(italics added, taken from page 35 of the decision) The court seems to be saying that, even in the previous decision, it was withholding final say on the word "marriage."

The 18,000 marriages performed last year will stand. Even under Prop 8.

On its face, this is hairsplitting of the finest of hairs. If Prop 8 is going to prohibit SSM, the court is going out of its way to indicate that it fully supports domestic partnerships.

I'm NOT surprised by the decision. On the other hand, if you chrome plate a pile of crap, you've still only got a shiny pile of crap. Earlier in the decision, the court points out that the issue at hand may in fact be how easy it abuse the initiative process. I'm tending towards agreement with that position.

[ May 26, 2009, 01:47 PM: Message edited by: jimskater ]

Posts: 805 | Registered: Nov 2000  |  IP: Logged | Report this post to a Moderator
jimskater
Member
Member # 181

 - posted      Profile for jimskater   Email jimskater   Send New Private Message       Edit/Delete Post   Reply With Quote 
From p 36 - 37 of the decision:

quote:
Applying similar reasoning in the present context, we properly must view the adoption of Proposition 8 as carving out an exception to the preexisting scope of the privacy and due process clauses of the California Constitution as interpreted by the majority opinion in the Marriage Cases, supra, 43 Cal.4th 757. The scope of the exception created by Proposition 8, however, necessarily is determined and limited by the specific language and scope of the new constitutional provision added by the ballot measure. Here the new constitutional provision (art. I, § 7.5) provides in full: “Only marriage between a man and a woman is valid or recognized in California.” By its terms, the new provision refers only to “marriage” and does not address the right to establish an officially recognized family relationship, which may bear a name or designation other than “marriage.” Accordingly, although the wording of the new constitutional provision reasonably is understood as limiting use of the designation of “marriage” under California law to opposite-sex couples, and thereby modifying the decision in the Marriage Cases, supra, 43 Cal.4th 757, insofar as the majority opinion in that case holds that limiting the designation of “marriage” to the relationship entered into by opposite-sex couples constitutes an impermissible impingement upon the state constitutional rights of privacy and due process, the language of article I, section 7.5, on its face, does not purport to alter or affect the more general holding in the Marriage Cases that same-sex couples, as well as opposite-sex couples, enjoy the constitutional right, under the privacy and due process clauses of the California Constitution, to establish an officially recognized family relationship.
They found an out. One that enshrines separate but equal, but an out, nonetheless. Which means that the contradiction inherent in allowing the 18,000 marriages to stand while banning future marriages doesn't exist in a form that the court is willing to address. The court goes on to give the same sort of analysis of Prop 8 in light of equal protection--it carves out the designation of "marriage" as not necessarily being part of the fundamental right to a state recognized relationship. The court further goes on to say that:

quote:
...in all other respects same-sex couples retain the same substantive protections embodied in the state constitutional rights of privacy and due process as those accorded to opposite-sex couples and the same broad protections under the state equal protection clause that are set forth in the majority opinion in the Marriage Cases, including the general principle that sexual orientation constitutes a suspect classification and that statutes according differential treatment on the basis of sexual orientation are constitutionally permissible only if they satisfy the strict scrutiny standard of review.
Separate rights, benefits and responsibilities are thus right off, except in the case of the word marriage.

"In the beginning was the word..."

Self-contradiction is never a good thing in a judicial decision, so far this one seems rife with them.

This concludes this portion of my live-blogging, lest I descend into rant mode.

[ May 26, 2009, 02:04 PM: Message edited by: jimskater ]

Posts: 805 | Registered: Nov 2000  |  IP: Logged | Report this post to a Moderator
hobsen
Member
Member # 2923

 - posted      Profile for hobsen   Email hobsen   Send New Private Message       Edit/Delete Post   Reply With Quote 
The decision on Proposition 8 turned out the way legal experts had predicted it would, although the 6-1 decision on upholding Proposition 8 and 7-0 decision on upholding the legality of existing same sex marriages in California are both a margin of victory that is a surprise. The justices upheld the principle that California voters can in most cases use popular initiatives to amend the California Constitution as they see fit.

But supporters of same sex marriage in California should be encouraged by the fact this decision makes the California Constitution ludicrous. That document now says "only marriage between a man and a woman is valid or recognized in California," while 18,000 existing same sex marriages have in fact been declared valid and recognized. So the California Constitution now says something as blatantly contrary to fact as saying the earth is flat and has four corners. For that reason those who drafted Proposition 8 may have won a battle by stopping further same sex marriages, but they have lost the war by having civil marriage in California permanently redefined to include same sex couples.

Politically the California Supreme Court has entrenched its power by rendering a very popular decision. Californians are closely divided over whether same sex marriage should be approved, and probably opposed to having popular initiatives like Proposition 8 overturned by the courts, but they very much wanted the existing marriages sustained. So in my opinion the CSC will now have all needed popular support as it renders decisions further limiting the effect of Proposition 8, probably by recognizing same sex marriages performed in other states. The United States Constitution explicitly forbids a state to say that the acts of its officials are valid while closely similar acts of officials in other states are not, so it should be very hard to hold that California same sex marriages last August were valid while Massachusetts ones were invalid. Expect such legal challenges to the existing law to reach the California Supreme Court fairly soon, although they may take a while to make their way through the lower courts to reach that exalted level.

Posts: 4387 | Registered: Jul 2006  |  IP: Logged | Report this post to a Moderator
Kuato
Member
Member # 6445

 - posted      Profile for Kuato   Email Kuato       Edit/Delete Post   Reply With Quote 
aw for stupid
Posts: 1038 | Registered: Apr 2009  |  IP: Logged | Report this post to a Moderator
PSRT
Member
Member # 6454

 - posted      Profile for PSRT   Email PSRT   Send New Private Message       Edit/Delete Post   Reply With Quote 
quote:
However, neither living people nor dead people are allowed to rewrite constitutions in your legal system without going through certain designated processes.
The only people rewriting the equal protection clause are the people who are adding "Unless you want to discriminate against gay people." The actual text of the constitution is incompatible with allowing straights access to marriage, but not gays.
Posts: 2152 | Registered: Apr 2009  |  IP: Logged | Report this post to a Moderator
Wayward Son
Member
Member # 210

 - posted      Profile for Wayward Son   Email Wayward Son   Send New Private Message       Edit/Delete Post   Reply With Quote 
quote:
That document now says "only marriage between a man and a woman is valid or recognized in California," while 18,000 existing same sex marriages have in fact been declared valid and recognized. So the California Constitution now says something as blatantly contrary to fact as saying the earth is flat and has four corners.
I'm sure that bit of paradox will be corrected in an upcoming election. [Big Grin]
Posts: 8681 | Registered: Dec 2000  |  IP: Logged | Report this post to a Moderator
hobsen
Member
Member # 2923

 - posted      Profile for hobsen   Email hobsen   Send New Private Message       Edit/Delete Post   Reply With Quote 
Jordan wins the award for making the best posts on this thread, which is particularly commendable as this is a debate confined to California, while he is at university in England. That is pretty much like my making the best comments in a thread from a forum in England discussing county cricket matches.

[ May 26, 2009, 04:26 PM: Message edited by: hobsen ]

Posts: 4387 | Registered: Jul 2006  |  IP: Logged | Report this post to a Moderator
scifibum
Member
Member # 945

 - posted      Profile for scifibum   Email scifibum   Send New Private Message       Edit/Delete Post   Reply With Quote 
Seconded.

FWIW, jasonr, I think you need to look more carefully at the argument he's made here.

Posts: 6847 | Registered: Mar 2003  |  IP: Logged | Report this post to a Moderator
jimskater
Member
Member # 181

 - posted      Profile for jimskater   Email jimskater   Send New Private Message       Edit/Delete Post   Reply With Quote 
quote:
Originally posted by scifibum:
Seconded.

FWIW, jasonr, I think you need to look more carefully at the argument he's made here.

and (re)seconded on both counts.

The EPC, once invoked, does seem to be an all or nothing proposition. Read Moreno's dissent to the majority opinion for a far better explication than I can provide: like the Iowa decision, (IMHO) it's a beam of clarity in an otherwise fogged debate.

Posts: 805 | Registered: Nov 2000  |  IP: Logged | Report this post to a Moderator
Star Pilot 111
Member
Member # 1972

 - posted      Profile for Star Pilot 111     Send New Private Message       Edit/Delete Post   Reply With Quote 
The decision was as it should be, even though government has no right to stick it's nose into religious matters.

We already have to pay the gov. for a license to get married. What's with that?

The opening of the Declaration of Independence , states as follows:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights..”

From the beginning marriage was given to mankind, by the Creator, as a union between man and woman. Religions thru-out the history of this earth have recognized marriage as a sacred part of their faith.
If government takes it from religion and OK’s same-sex “marriage” it is contrary to the

1st Amendment, which states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;... “

If a government calls a same-sex union a “marriage”, it is an act of disrespect, to the sacred covenant of marriage, an intrusion and an affront to the free exercise of all true religions.

Kind of like saying “IN YOUR FACE!” [Mad]

Call it "Civil Union" "Government approved Union" or whatever and be done with it.

Posts: 337 | Registered: Aug 2004  |  IP: Logged | Report this post to a Moderator
DJQuag
Member
Member # 3582

 - posted      Profile for DJQuag   Email DJQuag       Edit/Delete Post   Reply With Quote 
I can't tell if this is satire or not. I've had this handle for a while, been lurking for longer, but I can't remember Star Pilot.

Please let this be a satire.

Posts: 476 | Registered: Jan 2007  |  IP: Logged | Report this post to a Moderator
Wayward Son
Member
Member # 210

 - posted      Profile for Wayward Son   Email Wayward Son   Send New Private Message       Edit/Delete Post   Reply With Quote 
And this is what happens when semantics become more important than reality:

In order to save marriage, we have to stop calling marriage "marriage." [Roll Eyes]

Posts: 8681 | Registered: Dec 2000  |  IP: Logged | Report this post to a Moderator
Gaoics79
Member
Member # 969

 - posted      Profile for Gaoics79   Email Gaoics79   Send New Private Message       Edit/Delete Post   Reply With Quote 
It looks like the gay rights community is gearing up for another battle to get Proposition 8 reversed. At least that is the plan. Activists vow to continue the fight

But no one has responded to the point I made earlier. If Proposition 8 is now enshrined in the constitution, wouldn't a reversal of it automatically qualify as a revision rather than an amendment ? Even if enough political will can be summoned to put this back on the ballot in the next election, will it do any good? Won't you need a 2/3 majority in the legislature to reverse the damage done by proposition 8?

Posts: 7629 | Registered: Mar 2003  |  IP: Logged | Report this post to a Moderator
Wayward Son
Member
Member # 210

 - posted      Profile for Wayward Son   Email Wayward Son   Send New Private Message       Edit/Delete Post   Reply With Quote 
I've been thinking about that myself, jasonr, and you may be right. Which means this vote was patently unfair, and probably can never be overturned. I mean, we can't even get the legislature to keep the state from going bankrupt because of a stubborn minority! [Mad]

The only argument against it that I can think of is the implication that, if Prop. 8 defined marriage, that means that marriage was a previously undefined institution. Which doesn't make a whole lot of sense...

Posts: 8681 | Registered: Dec 2000  |  IP: Logged | Report this post to a Moderator
MattP
Member
Member # 2763

 - posted      Profile for MattP   Email MattP   Send New Private Message       Edit/Delete Post   Reply With Quote 
quote:
If Proposition 8 is now enshrined in the constitution, wouldn't a reversal of it automatically qualify as a revision rather than an amendment ?
It seems to me that any status that can be toggled one direction via amendment can be toggled the other direction by a complementary process.

There may be a technical argument that doing so would constitute a revision, but the distinction between revision and amendment is fuzzy enough that I doubt such an argument would succeed if popular sentiment is against it.

Another way of looking at it - if this amendment was not a sufficiently fundamental change to constitute a revision, then removing this non-fundamental change should also not constitute a revision.

Posts: 3481 | Registered: Jan 2006  |  IP: Logged | Report this post to a Moderator
Gaoics79
Member
Member # 969

 - posted      Profile for Gaoics79   Email Gaoics79   Send New Private Message       Edit/Delete Post   Reply With Quote 
quote:
It seems to me that any status that can be toggled one direction via amendment can be toggled the other direction by a complementary process.

There may be a technical argument that doing so would constitute a revision, but the distinction between revision and amendment is fuzzy enough that I doubt such an argument would succeed if popular sentiment is against it.

As I understand it from reviewing the links that were cited in this and other threads, a revision is a change or reversal of an existing provision in the constitution, whereas an amendment merely adds on to or elaborates on an existing provision or provisions.

Since the constitution never mentioned gay marriage, the argument that Proposition 8 was itself merely an amendment was compelling. It wasn't really going against anything explicitly stated in the text.

But now that prop 8 is part of the constitution, the constitution explicitly states that only marriages between a man and a woman are recognized. If you tried to reverse this, that would be an express revocation of an existing provision in the constitution. It seems to me, that is the very definition of revision .

If a revision requires a 2/3 majority in the legislature to enact, then that is what you will have to do if you want to reverse prop 8.

This seems like more than just a technical argument to me. It's really quite fundamental, isn't it?

Posts: 7629 | Registered: Mar 2003  |  IP: Logged | Report this post to a Moderator
scifibum
Member
Member # 945

 - posted      Profile for scifibum   Email scifibum   Send New Private Message       Edit/Delete Post   Reply With Quote 
I had gotten a different impression, which was that the difference between revision and amendment (for the California constitution) was the scope of the changes, not whether you're adding or modifying. This would go against the ordinary usage of the terms "amend" and "revise" but like Matt I thought that a small change, even if it was to revise the text, could use the amendment process.
Posts: 6847 | Registered: Mar 2003  |  IP: Logged | Report this post to a Moderator
RickyB
Member
Member # 1464

 - posted      Profile for RickyB   Email RickyB   Send New Private Message       Edit/Delete Post   Reply With Quote 
"Really? On what do you base this notion that "minorities" as a general class (which could include everyone from felons to infants) were the blanket intended beneficiaries of the equal protection clause?"

On common sense and historical context, hmmm? You inclusion of infants and felons is nonsensical, as neither is a "minority" in the sense used by everyone else in the conversation.

Posts: 19145 | Registered: Jan 2004  |  IP: Logged | Report this post to a Moderator
MattP
Member
Member # 2763

 - posted      Profile for MattP   Email MattP   Send New Private Message       Edit/Delete Post   Reply With Quote 
quote:
As I understand it from reviewing the links that were cited in this and other threads, a revision is a change or reversal of an existing provision in the constitution, whereas an amendment merely adds on to or elaborates on an existing provision or provisions.
A revision has been previously described by the court as a "substantial change to the entire constitution, rather than ... a less extensive change in one or more of its provisions"

A reversal of an amendment of narrow focus is not necessarily a "substantial change to the entire constitution". Aside from that, the phrasing above indicates that the court does accept that a change to an existing provision is possible through a process of amendment.

[ May 27, 2009, 11:36 AM: Message edited by: MattP ]

Posts: 3481 | Registered: Jan 2006  |  IP: Logged | Report this post to a Moderator
Gaoics79
Member
Member # 969

 - posted      Profile for Gaoics79   Email Gaoics79   Send New Private Message       Edit/Delete Post   Reply With Quote 
quote:
On common sense and historical context, hmmm? You inclusion of infants and felons is nonsensical, as neither is a "minority" in the sense used by everyone else in the conversation.
Felons are certainly a minority, as are infants. Even women (who actually comprise more than 50% of the population) are considered "minorities" in the context of human rights and discrimination.

quote:
I had gotten a different impression, which was that the difference between revision and amendment (for the California constitution) was the scope of the changes, not whether you're adding or modifying. This would go against the ordinary usage of the terms "amend" and "revise" but like Matt I thought that a small change, even if it was to revise the text, could use the amendment process.
Well alright, say that you're right. Here's another question: obviously you cannot have two provisions in the constitution saying on one hand that only marriages between a man and a woman are recognized, but on the other hand, marriages between a man and a man or a woman and a woman shall be recognized. This is paradoxical. So for the constitution not to implode in on itself, you would not only have to add a provision to the constitution permitting ssm, you would also have to revoke an existing provision that prohibits ssm.

Query: can a provision of the California constitution be revoked by ballot measure?

Posts: 7629 | Registered: Mar 2003  |  IP: Logged | Report this post to a Moderator
MattP
Member
Member # 2763

 - posted      Profile for MattP   Email MattP   Send New Private Message       Edit/Delete Post   Reply With Quote 
quote:
Query: can a provision of the California constitution be revoked by ballot measure?
I don't see why not. The California Constitution doesn't look like the US Constitution - there's no original text followed by a series of amendments. An amendment to the California Constitution results in an alteration of the existing text of the document. Both amendments and revisions are just "edits" to the Constitution, with a revision being a more substantial edit.

[ May 27, 2009, 12:00 PM: Message edited by: MattP ]

Posts: 3481 | Registered: Jan 2006  |  IP: Logged | Report this post to a Moderator
hobsen
Member
Member # 2923

 - posted      Profile for hobsen   Email hobsen   Send New Private Message       Edit/Delete Post   Reply With Quote 
For Jasonr,

From Bruce E. Cain - Constitutional Revision in California:

"But if revision has been infrequent, constitutional amendment In California has been common. From 1879 to the mid-nineties, California ranked first in the nation in proposed amendments (812) and second in adopted ones (485), averaging 4.29 per year (Cain, Ferejohn, Najar and Walther, 1995). While there is in principle an important legal distinction between a revision and an amendment with respect to the quantity and quality of proposed changes, the reality is that the California courts have not been very concerned about enforcing the line between them. When, for instance, Proposition 140 imposed term limits on the state legislature and cut its budget by 40%, the state Supreme Court did not even seriously review the merits of the argument that this was a revision and not a mere amendment. And yet, there are many who would argue that term limits is the most significant change in post-war California government."

The reason for this may be that, unless the CSC chooses to declare that a ballot proposition approved by the voters is a revision, the new language becomes part of the California Constitution. So the CSC can simply fail to make such a ruling on any proposition unless the CSC considers it will do great harm.

[ May 27, 2009, 12:12 PM: Message edited by: hobsen ]

Posts: 4387 | Registered: Jul 2006  |  IP: Logged | Report this post to a Moderator
Sefer
Member
Member # 6366

 - posted      Profile for Sefer   Email Sefer   Send New Private Message       Edit/Delete Post   Reply With Quote 
quote:
Originally posted by jasonr:
quote:
On common sense and historical context, hmmm? You inclusion of infants and felons is nonsensical, as neither is a "minority" in the sense used by everyone else in the conversation.
Felons are certainly a minority, as are infants. Even women (who actually comprise more than 50% of the population) are considered "minorities" in the context of human rights and discrimination.

Felons and infants are not minorities in the same sense of the word of the word that women are minorities. RickyB is pointing out that everyone else is using the word "minority" in the sense that women are a minority, not in the sense that would make infants a minority and women a majority (or even in the sense that would put infants in a minority and black Jewish lesbians over the age of 18 in a majority).
Posts: 46 | Registered: Nov 2008  |  IP: Logged | Report this post to a Moderator
Gaoics79
Member
Member # 969

 - posted      Profile for Gaoics79   Email Gaoics79   Send New Private Message       Edit/Delete Post   Reply With Quote 
quote:
The reason for this may be that, unless the CSC chooses to declare that a ballot proposition approved by the voters is a revision, the new language becomes part of the California Constitution. So the CSC can simply fail to make such a ruling on any proposition unless the CSC considers it will do great harm.
Hmmm... I'm not totally convinced.

The excerpt you referenced did not actually address the specific issue I raised, which is whether or not a provision could be revoked by ballot measure, nor did it address a specific instance of a measure being introduced that explicitly contradicts an existing provision.

While the court may have been very lenient in the past about enforcing the "revision" / "amendment" distinction, I find it hard to believe that they are going to just ignore the law in a clear case of revision. Certainly, if the law expressly requires a 2/3 majority in the legislature to revoke a provision, I can't believe they would just ignore that either. This is all doubly the case for a politically charged issue that is going to be scrutinized by an army of lawyers.

Posts: 7629 | Registered: Mar 2003  |  IP: Logged | Report this post to a Moderator
scifibum
Member
Member # 945

 - posted      Profile for scifibum   Email scifibum   Send New Private Message       Edit/Delete Post   Reply With Quote 
"I find it hard to believe that they are going to just ignore the law in a clear case of revision"

I guess if you presuppose YOUR criteria for what constitutes a revision and what is an amendment, it would be hard to imagine the court letting a revision slide as an amendment. [Smile]

Posts: 6847 | Registered: Mar 2003  |  IP: Logged | Report this post to a Moderator
DonaldD
Member
Member # 1052

 - posted      Profile for DonaldD   Email DonaldD   Send New Private Message       Edit/Delete Post   Reply With Quote 
I think some people are mixing up 'minority' with 'class'. In general (not universally) a class making up a majority in a democratic society does not have the same issues being subject to discriminatory laws or practices as does a class making up an identifiable minority.

As to the question of revoking a revision or amendment: once some change has been made to the Cali constitution, that change becomes part of the constitution, no more and no less so than any other section of the document, and would be treated as no different by any subsequent proposition process.

Posts: 10751 | Registered: May 2003  |  IP: Logged | Report this post to a Moderator
Wayward Son
Member
Member # 210

 - posted      Profile for Wayward Son   Email Wayward Son   Send New Private Message       Edit/Delete Post   Reply With Quote 
quote:
I find it hard to believe that they are going to just ignore the law in a clear case of revision.
This depends on what is meant by "clear case." Is "clear case" what the law says, or what the law was meant to do?

I find it impossible to believe that the intention of the framers of the California Constitution intended that only a slight majority of the voters had the ability to limit the rights (for lack of a better, more neutral word) of a minority group, but then would require a much higher hurdle to restore those rights. It is patently unfair and could adversely affect any group in the state. (For instance, if an ammendment passed requiring business owners to pay 90 percent of their profits in taxes.)

The wording may be clear, but if the strict interpretation of the wording leads to a result that is obviously not the intent of the framers, then the interpretation of the wording is at fault, no matter how "clear" that interpretation is.

Posts: 8681 | Registered: Dec 2000  |  IP: Logged | Report this post to a Moderator
Gaoics79
Member
Member # 969

 - posted      Profile for Gaoics79   Email Gaoics79   Send New Private Message       Edit/Delete Post   Reply With Quote 
quote:
I guess if you presuppose YOUR criteria for what constitutes a revision and what is an amendment, it would be hard to imagine the court letting a revision slide as an amendment.
Yes, and since I'm not an expert on this area by any means, I am happy if someone wants to correct me. The excerpt you provided did not, actually, say anything to lead me to believe that the definition I posed was wrong.

Further, it said absolutely nothing about the key issue here, which is whether or not a provision can be repealed by ballot measure, which is a related, but not totally identical question from the definition of a revision versus amendment.

[ May 27, 2009, 01:38 PM: Message edited by: jasonr ]

Posts: 7629 | Registered: Mar 2003  |  IP: Logged | Report this post to a Moderator
Gaoics79
Member
Member # 969

 - posted      Profile for Gaoics79   Email Gaoics79   Send New Private Message       Edit/Delete Post   Reply With Quote 
quote:
This depends on what is meant by "clear case." Is "clear case" what the law says, or what the law was meant to do?

I find it impossible to believe that the intention of the framers of the California Constitution intended that only a slight majority of the voters had the ability to limit the rights (for lack of a better, more neutral word) of a minority group, but then would require a much higher hurdle to restore those rights. It is patently unfair and could adversely affect any group in the state. (For instance, if an ammendment passed requiring business owners to pay 90 percent of their profits in taxes.)

I see what you're saying, but this is one of those cases where the letter of the law may trump the spirit as they say. If I am correct about what the law actually says (which is admittedly a big if)I cannot conceive of any way to circumvent the law. Even the most activist court cannot simply re-write the constitution to say something opposite to what it actually says. Such a thing would be unprecedented, as far as I know.

quote:
The wording may be clear, but if the strict interpretation of the wording leads to a result that is obviously not the intent of the framers, then the interpretation of the wording is at fault, no matter how "clear" that interpretation is.
Again, I understand the moral and public policy argument you are making, but can you actually cite a legal argument in support of it? i.e. one that the courts would actually be capable of hanging their hats on?
Posts: 7629 | Registered: Mar 2003  |  IP: Logged | Report this post to a Moderator
flydye45
unregistered


 - posted            Edit/Delete Post   Reply With Quote 
quote:
Originally posted by Wayward Son:
I've been thinking about that myself, jasonr, and you may be right. Which means this vote was patently unfair, and probably can never be overturned. I mean, we can't even get the legislature to keep the state from going bankrupt because of a stubborn minority! [Mad]

So the majority overspending has no responsibility, neh?
IP: Logged | Report this post to a Moderator
Wayward Son
Member
Member # 210

 - posted      Profile for Wayward Son   Email Wayward Son   Send New Private Message       Edit/Delete Post   Reply With Quote 
Who defines what "overspending" means? The minority? [Wink]

We're going to see now, though. With something like $14 billion in additional cuts coming through, we'll see how much of it is "overspending" and how much is services that people find essential.

But the basic problem still stands. If 1/3 of the legistlature believes more must be cut, and 1/3 of the legislature believes the cuts are too onerous, how will a budget ever be passed? [Eek!]

Posts: 8681 | Registered: Dec 2000  |  IP: Logged | Report this post to a Moderator
Jordan
Member
Member # 2159

 - posted      Profile for Jordan   Email Jordan   Send New Private Message       Edit/Delete Post   Reply With Quote 
I honestly can't decide whether an initiative to invalidate Proposition 8 would be an amendment or a revision, although I expect that if it were to pass the "Yes On 8" side would make a sporting attempt to return the favour and have the courts investigate the question.

On the one hand, Proposition 8 contradicts the Constitution by removing an inalienable right, no matter how that right came to be recognised, or how briefly. This seems to me like a very decent case for deeming it to be a revision; if even contradicting a central axiom of the constitution is considered to be within the scope of an amendment, it is hard to imagine that striking down said amendment would count as a revision.

On the other, I think that there is a very good chance that the court was technically, if not psychologically, within a hairsbreadth from finding that Prop. 8 was indeed a revision, and only allowed it to pass through the net because it was not fully explicit in its scope; openly eliminating a provision from the California Constitution might well cross the line from amendment to revision. Jason has a very good case here.

[ May 27, 2009, 03:47 PM: Message edited by: Jordan ]

Posts: 2147 | Registered: Nov 2004  |  IP: Logged | Report this post to a Moderator
MattP
Member
Member # 2763

 - posted      Profile for MattP   Email MattP   Send New Private Message       Edit/Delete Post   Reply With Quote 
quote:
Further, it said absolutely nothing about the key issue here, which is whether or not a provision can be repealed by ballot measure, which is a related, but not totally identical question from the definition of a revision versus amendment.

There's nothing to repeal. One amendment adds some text, another amendment might change or delete some text. The fact that the text being changed was added by a previous amendment is immaterial.

Here's an example of an amendment that includes the deletion of text from an existing provision:

http://primary96.sos.ca.gov/e/ballot/193txt.html

This was the first one I looked at, so I suspect the deletion of text is pretty common.

Posts: 3481 | Registered: Jan 2006  |  IP: Logged | Report this post to a Moderator
TommySama
Member
Member # 2780

 - posted      Profile for TommySama   Email TommySama       Edit/Delete Post   Reply With Quote 
I believe that if a new amendment is passed which legalized same sex marriage, proposition 8 would be nullified, which Jason or hobsen determined on page one. So it would be an amendment rather than a revision for the same reason that Prop 8 was. Not sure, though.
Posts: 6396 | Registered: Feb 2006  |  IP: Logged | Report this post to a Moderator
Pyrtolin
Member
Member # 2638

 - posted      Profile for Pyrtolin   Email Pyrtolin   Send New Private Message       Edit/Delete Post   Reply With Quote 
As a note on the overall issue- the ACLU is weighing in on the side of legislative, not judicial action:

http://www.aclu.org/lgbt/relationships/39672res20090527.html#attach

Posts: 11997 | Registered: Oct 2005  |  IP: Logged | Report this post to a Moderator
  This topic comprises 4 pages: 1  2  3  4   

Quick Reply
Message:

HTML is not enabled.
UBB Code™ is enabled.
UBB Code™ Images not permitted.
Instant Graemlins
   


Post New Topic  Post A Reply Close Topic   Feature Topic   Move Topic   Delete Topic next oldest topic   next newest topic
 - Printer-friendly view of this topic
Hop To:


Contact Us | Ornery.org Front Page

Powered by Infopop Corporation
UBB.classic™ 6.7.1