re: ""Christians Out of the Castro, Christians Out of the Castro!" "
Ace at Ace of Spades HQ notes the pending self-beclowning of the California Supreme Court.
Money quote(s):
"Whether you believe in Prop 8 or not, judges, supposedly, derive their power to overturn legislation based on laws' purported conflicts with The Constitution -- it is the Constitution from which their power derives entirely.
How on earth can they claim that constitutions themselves are unconstitutional?"
He goes further:
"This is a simple admission that they do not base their opinions on the Constitution at all, but simply upon their own sense of That Which Is Good. Shorn of any theory which even plausibly hints at such a residuum of judicial power, their decisions are now lawless and themselves unconstitutional, without even a pretext of principled, limited theory of judicial intervention legitimizing their actions."
Ouch. That'll leave a mark.
Money quote(s):
"Whether you believe in Prop 8 or not, judges, supposedly, derive their power to overturn legislation based on laws' purported conflicts with The Constitution -- it is the Constitution from which their power derives entirely.
How on earth can they claim that constitutions themselves are unconstitutional?"
He goes further:
"This is a simple admission that they do not base their opinions on the Constitution at all, but simply upon their own sense of That Which Is Good. Shorn of any theory which even plausibly hints at such a residuum of judicial power, their decisions are now lawless and themselves unconstitutional, without even a pretext of principled, limited theory of judicial intervention legitimizing their actions."
Ouch. That'll leave a mark.
posted by Consul-At-Arms at 12:28 PM
6 Comments:
The same way that it doesn't matter what the battalion commander's policies say if they're against the brigade commander's. Higher authority always trumps, I'm not sure why that's such a surprise. If something's against the USA Constitution, it doesn't really matter what the State one says, the US one wins.
In the instance of California, I took this to mean that the California Supreme Court could rule that part of their consitution was unconstitutional under that same constitution.
Follow me so far? I mean, if you lawfully and constitutionally amend your constitution, how can the court say that the amendment is unconstitutional?
Oh, okay. I get you. No, the most that could then happen, I believe, is that they could tell the legislative bodies that the state constitution is somehow in conflict with itself, and tell them to somehow fix it, whether by changing wording, amending, eliminating one or the other, etc, I don't know, but not specifically striking down one over the other.
I was assuming it was California-vs-US. I still think, though, that eventually this marriage thing is going to get sorted out in federal court, because there are already problems with various states not recognizing issues of marriage, child custody, etc. And that's kind of what the federal government was originally intended to do-mediate disputes between states, among other things.
If my understanding is correct (and I am NOT a lawyer), the problem is that Prop 8 creates a conflict in the constitution because it violates another part of the constitution (it violates the equal protection clause under the California constitution by taking away an existing right only from one group). According to the California constitution, if something will make a drastic change to the constitution, it must pass by 2/3 majority vote.
@Digger,
That makes sense. I don't know what the amendment process in California is, and am not a lawyer either.
In purely constitutional terms (assuming an amendment is passed in a lawful form), I would think that an constitutional amendment would by its very nature abrogate and amend the existing document.
Random note from someone passing by -
The decision that the court will return on Prop 8 doesn't have anything to do with whether the Prop is constitutional or not. What they will be deciding is whether Prop 8 constitutes a "revision" or an "amendment" to the Constitution.
You can see by looking here that "amendments" and "revisions" are different concepts within the CA constitution. And there are different processes for getting either passed.
The proponents of Prop 8 are arguing that Prop 8 is an amendment, and as such, must be effective as state law.
The opponents of the measure will try to argue that Prop 8 revises rather than amends the constitution, and as such, can not be passed with a simple majority ballot measure.
The definitions of "amendment" and "revision" are not very clearly drawn in the constitution itself (I'd assume that some of this has been hashed out in prior cases).
As it is, the argument that a Prop is actually a "revision" has not been notably successful in the past. However, there is some indication that it may work this time around. When Prop 8 was placed on the ballot, the attorney general in CA changed the wording of the Prop before it was placed on the ballot.
Original wording was - "[Proposition 8] amends the California Constitution to provide that only marriage between a man and a woman is valid or recognized in California."
Revised wording was - "Changes California Constitution to eliminate right of same-sex couples to marry."
This rewording of the ballot was taken to the Supreme Court and the court argued that the revised wording held.
So, the argument goes, the court has already indicated that it believes that Prop 8 is a "revision" (supporting language that states that Prop 8 is an elimination of a previously guaranteed right) and will likely argue that the Prop does not stand.
I hope that helps your understanding of the matter a bit.
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