Posted by Eugene Volokh:
Quote from the California Supreme Court's Opinion Upholding Prop. 8:
http://volokh.com/archives/archive_2009_05_24-2009_05_30.shtml#1243363014
This strikes me as exactly correct:
[N]o authority supports the Attorney General�s claim that a
constitutional amendment adopted through the constitutionally
prescribed procedure is invalid simply because the amendment
affects a prior judicial interpretation of a right that the
Constitution denominates �inalienable.� The natural-law
jurisprudence reflected in passages from the few early judicial
opinions relied upon by the Attorney General has been discredited
for many years, and, in any event, no decision suggests that when a
constitution has been explicitly amended to modify a constitutional
right (including a right identified in the Constitution as
�inalienable�), the amendment may be found unconstitutional on the
ground that it conflicts with some implicit or extraconstitutional
limitation that is to be framed and enforced by the judiciary.
Although the amending provisions of a constitution can expressly
place some subjects or portions of the constitution off-limits to
the amending process -- as already noted, some state constitutions
contain just such explicit limits -- the California Constitution
contains no such restraints. This court would radically depart from
the well-established limits of the judicial function were it to
engraft such a restriction onto the Constitution in the absence of
an explicit constitutional provision limiting the amendment
power....
In a sense, petitioners� and the Attorney General�s complaint is
that it is just too easy to amend the California Constitution
through the initiative process. But it is not a proper function of
this court to curtail that process; we are constitutionally bound
to uphold it. If the process for amending the Constitution is to be
restricted -- perhaps in the manner it was explicitly limited in an
earlier version of our state Constitution, or as limited in the
present-day constitutions of some of our sister states -- this is
an effort that the people themselves may undertake through the
process of amending their Constitution in order to impose further
limitations upon their own power of initiative.
The California Supreme Court justified its earlier decision
recognizing same-sex marriages by reference to the California
Constitution, which in turns draws its authority from having been
enacted by the people. What the people implemented, the people can
lawfully amend. Perhaps the amendment may be morally wrong, but it is
legally authoritative (unless it violates some superior legal rule,
such as the U.S. Constitution, but recall that the debate in this case
has been about rights supposedly secured by the California
Constitution).
More on the amendment/revision question, I hope, as I read further.
_______________________________________________
Volokh mailing list
[email protected]
http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
