Friday, November 21, 2008

Prop 8 and the Supreme Court

Is Proposition 8 an "amendment" to California's constitution, or a "revision"?
John Hinderaker at Power Line thinks it can't be anything but an "amendment".

It's not likely to happen, though. You can read the parties' filings here. The Petitioners' argument against Proposition 8 is worse than feeble. Their claim is based on the fact that California's Constitution distinguishes between "amendment" and "revision" of that document. An "amendment" can be done by initiative, but a "revision" must be initiated by the legislature and approved by popular ballot. Petitioners assert that Proposition 8 is a "revision" rather than an "amendment."

The problem with that argument is California's Constitution uses the term "revise" only in connection with establishment of a constitutional convention that would have broad authority to change the Constitution. An amendment is anything else:

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.

I don't see how it can seriously be argued that Proposition 8 is something other than an "amendment," and, at least as far as I've gotten in Petitioners' pleadings, they don't make a serious argument. What the Petitioners do say is that the right to homosexual marriage is so "fundamental" that taking it away can only be viewed as a "revision" requiring legislative enactment. But this argument is completely unsupported by the language of the Constitution.

 

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