Article 18 of the California Constitution provides authority for the California Constitution to be amended and revised.
Section 3 of Article 18 permits the "electors" to amend the constitution via initiative.
The only method provided in the Constitution by which it can be revised, however, is set forth in sections 1 and 2 of article XVIII which permit revision only by way of:
- a 2/3 vote of the Legislature to present the revision to the electorate for a vote; and
- a 2/3 vote of the Legislature to hold a constitutional convention and subsequent ratification by the people.
The Supremes, however, have given us some guidance. In Livermore v. Waite, 102 Cal. 113 (1894) the Court said that an "amendment implies such an addition or change within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it is framed." (102 Cal. at 119.) A revision, on the other hand, is:
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...[but] 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 School District v. State Bd. of Equalization, 22 Cal.3d 208, 223 (1978).)
In the instances when the California Supreme Court has found a law to be a revision rather than an amendment, however, the law generally included multiple new laws. For example, in McFadden v. Jordan, 32 Cal. 2d 330 (1948) the initiative at issue actually proposed to add a new Article which consisted of 12 separate sections divided into some 208 subsections set forth in more than 21,000 words. At that time, the California Constitution only had 55,000 words. So, the initiative sought to increase the Constitution's word count by approximately 40%.
Thus, the No Crowd is arguing that Proposition 8 constitutes a revision rather than an amendment and should be tossed out because it was not approved by 2/3 of the Legislature before being submitted to the electorate.
3 comments:
Having read up on this issue extensively, as well as the relevant case law, I would have to conclude that Proposition 8 is indeed a legitimate amendment.
Initiative constitutional amendments have been used to legalize Indian gaming, impose legislative term limits, forbid the state from engaging in racial or gender discrimination in employment, and even reinstate the death penalty.
The last two are especially relevant. An initiative amendment added Section 31 to the Declaration of Rights, forbidding the state from discriminating against "any individual or group on the basis of
race, sex, color, ethnicity, or national origin in the operation of
public employment, public education, or public contracting." In effect, it was an expansion of the scope of the equal protection clause. If revisions were necessary to affect the equal protection clause, then this section would be invalid and there would be no basis in the state constitution for equal protection in public employment, public education, or public housing.
An initiative amendment added Section 27 to the Declaration of Rights, which constitutionalized the death penalty. It was added after the Supreme Court had ruled "that capital punishment is both cruel and unusual as those terms are defined under article I, section 6, of the California Constitution, and that therefore death may not be exacted as punishment for crime in this state." In that same decision, it reiterated that "The cruel or unusual punishment clause of the California Constitution, like other provisions of the Declaration of Rights, operates to restrain legislative and executive action and to protect fundamental individual and minority rights against encroachment by the majority." It is jnoted that the cruel and unusual punishment clause applies to all persons subject to California law; the only dispute in questions over cruel and unusual punishment is whether the punishment is cruel or unusual. Section 27 was challenged as an illegitimate revision in People v. Frierson , the Court rejected that challenge. Thus, a fundamental right found in the state constitution's Declaration of Rights was affected by an initiative amendment.
The decision Raven v. Deukmejian did invalidate an initiative amendment- but the amendment placed drastic limits on state courts' ability to interpret the rights of criminal defendants, limiting state interpretation of state constitutional protections to the U.S. Supreme Court's interpration of analagous U.S. constitutional protections. By contrast, Prop. 8 is extremely limited in scope- it only defines one word. State courts continue to have the power to apply equal protection on the basis of sexual preference and orientation. Indeed, they may rule that same-sex couples, including those who got "married" before Prop. 8's passing, are entitled to tax, inheritance, power-of-attorney, hospital visitation, and other benefits married couples enjoy. They could even rule divorce laws apply to same-sex couples- Prop. 8 did not define divorce.
To rule Prop. 8 as a revision would effectively state that a revision is required to define marriage, but an amendment is sufficient to redefine cruel and unusual punishment- a life and death issue for death row inmates.
Michael, thank you for the excellent analysis.
Michael, thank you for the excellent analysis.
Thank you.
I did not even go into the political analysis.
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