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Old 03-05-2009, 04:47 PM   #31
MikeWaters
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Many states have already amended their constitutions. It appears that isn't good enough, because the gay marriage folks will just claim it wasn't a legitimate amendment. What else can they do?

We can appropriately dub this minority rule.
Change the state constitutions such that judges are more easily recalled, as an example.

In Texas, the supreme court is by election.
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Old 03-05-2009, 05:02 PM   #32
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Change the state constitutions such that judges are more easily recalled, as an example.

In Texas, the supreme court is by election.
So I read a brief synopsis of what the arguments are.

A revision changes an existing provision and must first be approved by a two thirds majority of the legislature. I think this is the requirement for one of the two procedures in Nevada.

An amendment simply occurs by majority vote, after enough signatures are collected.

We have the initiative and referendum process in Nevada, and if i thought long enough I'd remember the distinction, but I believe it's similar to California's.


But what is a revision? If a vague provision is interpreted to apply, and an addition is made which states the will of the people, namely to add a provision identifying who gets the benefits of marriage, that sounds like an addition. Previously I don't believe California had marriage specific rights in its Constitution.

The whole distinction seems inane.

The purpose is that majority rule might be used to oppress a minority. The distinctions seem vague and difficult to apply.

As Levin pointed out, the opponents never claimed in their marketing it was a mere revision but rather it was a major addition and change.
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Old 03-05-2009, 05:07 PM   #33
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Disclaimer: I am not an attorney so this is not my area of expertise.

Sincere question:

We seem to "rallying around the constitution" here. We are talking about the Calif. state constitution, not the US constitution. The US constitution can never be changed in this manner, so it makes senses that the rules would be different. If you believe that state-by-state voter referendums ("referenda"?) that change state constitutions should never be reviewed by the courts, how could the courts ever go about protecting minority rights?
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Old 03-05-2009, 05:10 PM   #34
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This is a "heads we win, tails you lose" situation. The anti-Prop 8 folks campaigned as if the proposition was legitimate prior to the election. They lost, and now they say it was an illegitimate revision of the Constitution.

Any legal argument will be used to achieve the desired ends. The lack of consistency shows there's no integrity in their legal reasoning or arguments.
That's a copout. When the issue is on the ballot, they have to campaign against it whether they believe it is legitimate or not. Any other strategy diverting energy away from mobilizing votes on the ballot would have been incredibly foolish.
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Old 03-05-2009, 05:11 PM   #35
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Originally Posted by Jeff Lebowski View Post
Disclaimer: I am not an attorney so this is not my area of expertise.

Sincere question:

We seem to "rallying around the constitution" here. We are talking about the Calif. state constitution, not the US constitution. The US constitution can never be changed in this manner, so it makes senses that the rules would be different. If you believe that state-by-state voter referendums ("referenda"?) that change state constitutions should never be reviewed by the courts, how could the courts ever go about protecting minority rights?
First, to the extent minority rights are infringed upon by a state law or constitution, it is subject to review within the US federal court system. So there's that vital layer of protection.

Second, relying only upon an additional "layer" of protection, minority rights are protected by the state Constitution, but what you are asking is whether the state supreme court justices should stand above the state constitutions. That's weird. So the question is, what if the State Constitution does not infringe upon the US Constitution but infringes upon somebody's idea of minority rights? Well, that isn't necessarily unlawful and not the job of state justices to impose their idea of minority "rights". Their job is to look at statutes and state conduct to determine if they violate the state constitution, not to create pseudo rights directly contrary to the adopted constitution.
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Old 03-05-2009, 05:15 PM   #36
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First, to the extent minority rights are infringed upon by a state law or constitution, it is subject to review within the US federal court system. So there's that vital layer of protection.

Second, relying only upon an additional "layer" of protection, minority rights are protected by the state Constitution, but what you are asking is whether the state supreme court justices should stand above the state constitutions. That's weird. So the question is, what if the State Constitution does not infringe upon the US Constitution but infringes upon somebody's idea of minority rights? Well, that isn't necessarily unlawful and not the job of state justices to impose their idea of minority "rights".
Thanks.

If this is such a blatant violation of the state/federal judicial process, then why has it gotten this far? The article implies that the current review is not such an extraordinary event.
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Old 03-05-2009, 05:17 PM   #37
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Quote:
Originally Posted by Jeff Lebowski View Post
Disclaimer: I am not an attorney so this is not my area of expertise.

Sincere question:

We seem to "rallying around the constitution" here. We are talking about the Calif. state constitution, not the US constitution. The US constitution can never be changed in this manner, so it makes senses that the rules would be different. If you believe that state-by-state voter referendums ("referenda"?) that change state constitutions should never be reviewed by the courts, how could the courts ever go about protecting minority rights?
On what grounds? I'm not opposed to protecting minority rights in principle, but there should be rules governing how that happens. Judges don't get to act independent of law just because they disagree with the majority.
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Old 03-05-2009, 05:18 PM   #38
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Thanks.

If this is such a blatant violation of the state/federal judicial process, then why has it gotten this far? The article implies that the current review is not such an extraordinary event.
California is just a weird, hokey state when it comes to judicial precedent. For the most part, aside from maybe community property precedent, it is ignored by the remainder of the country, although weird aspects do spin off from time to time.

It's not a violation of the federal process, but California has long been known for bastardizing the traditional plebescitic process. The Justices have long thumbed their noses at the State Constitution, long ago since Rose Bird did it.
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Old 03-05-2009, 05:22 PM   #39
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On what grounds? I'm not opposed to protecting minority rights in principle, but there should be rules governing how that happens. Judges don't get to act independent of law just because they disagree with the majority.
You haven't provided any convincing evidence that they are operating outside of the law.
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Old 03-05-2009, 05:25 PM   #40
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You haven't provided any convincing evidence that they are operating outside of the law.
First, the justices haven't decided and may well decide it was untoward last grasp effort to overturn a vote which the minority really objected to. To file a lawsuit, all it takes is some ink, some paper and some money.

Second, if the justices act contrary to what appears "lawful", there is nobody to punish them or to correct them. So justices can make the unlawful, lawful.
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