Posted by Eugene Volokh:
The California Supreme Court on Amendment vs. Revision:
http://volokh.com/archives/archive_2009_05_24-2009_05_30.shtml#1243363861
Under the California Constitution, the initiative can be used for
constitutional "amendments" but not constitutional "revisions"; see
[1]this post for more, including the constitutional text that strongly
suggests this. Here's the California Supreme Court's explanation for
why Prop. 8 is a constitutionally permissible "amendment" and not an
impermissible "revision" (all emphases in original):
�[O]ur analysis in determining whether a particular constitutional
enactment is a revision or an amendment must be both quantitative
and qualitative in nature. For example, 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 may well constitute a revision
thereof. However, 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. In illustration, the parties
herein appear to agree that an enactment which purported to vest
all judicial power in the Legislature would amount to a revision
without regard either to the length or complexity of the measure or
the number of existing articles or sections affected by such
change.� ...
From a quantitative standpoint, it is obvious that Proposition 8
does not amount to a constitutional revision. The measure adds one
14-word section to article I -- a section that affects two other
sections of article I by creating an exception to the privacy, due
process, and equal protection clauses contained in those two
sections as interpreted in the majority opinion in the Marriage
Cases. Quantitatively, Proposition 8 unquestionably has much less
of an effect on the preexisting state constitutional scheme than
virtually any of the previous constitutional changes that our past
decisions have found to constitute amendments rather than
revisions....
[As to the qualitiative prong of the amendment/revision analysis,]
the numerous past decisions of this court that have addressed this
issue all have indicated that the type of measure that may
constitute a revision of the California Constitution is one that
makes �far reaching changes in the nature of our basic governmental
plan,� or, stated in slightly different terms, that �substantially
alter[s] the basic governmental framework set forth in our
Constitution.� ... Proposition 8 works no such fundamental change
in the basic governmental plan or framework established by the
preexisting provisions of the California Constitution -- that is,
�in [the government's] fundamental structure or the foundational
powers of its branches.� ...
([2]Show the rest of the excerpt.)
Petitioners contend, however, that even if Proposition 8 does not make
a fundamental change in the basic governmental plan or framework
established by the Constitution, the measure nonetheless should be
found to constitute a revision because it allegedly �strike[s]
directly at the foundational constitutional principle of equal
protection ... by establishing that an unpopular group may be
selectively stripped of fundamental rights by a simple majority of
voters.� Petitioners' argument rests, initially, on the premise that a
measure that abrogates a so-called foundational constitutional
principle of law, no less than a measure that makes a fundamental
change in the basic governmental structure or in the foundational
power of its branches as established by the state Constitution, should
be viewed as a constitutional revision rather than as a constitutional
amendment. Petitioners suggest that their position is not inconsistent
with our past amendment/revision decisions, on the theory that none of
those decisions explicitly held that only a measure that makes a
fundamental change in the state's governmental plan or framework can
constitute a constitutional revision....
[But a]lthough a principal purpose of all constitutional provisions
establishing individual rights is to serve as a countermajoritarian
check on potential actions that may be taken by the legislative or
executive branches, our prior decisions ... establish that the scope
and substance of an existing state constitutional individual right, as
interpreted by this court, may be modified and diminished by a change
in the state Constitution itself, effectuated through a constitutional
amendment approved by a majority of the electors acting pursuant to
the initiative power....
[C]ontrary to petitioners' claim that a determination that Proposition
8 constitutes a constitutional amendment would represent a dramatic
change in existing state constitutional principles, it is petitioners'
proposal that radically would alter the long and firmly established
understanding of the amendment/revision distinction embodied in the
California Constitution. In basing their argument entirely on the
circumstance that Proposition 8 has the effect of diminishing one
aspect of a fundamental right of a group that this court has
determined properly should be considered a �suspect class� for
purposes of the state constitutional equal protection clause,
petitioners in essence ask this court to read into the
amendment/revision distinction embodied in the California Constitution
a number of the distinctive elements of the state constitutional equal
protection jurisprudence that have been developed and applied by this
court in recent years. As we have seen, however, neither the history
of the amendment/revision distinction in the California Constitution
since its inception in 1849, nor the numerous cases that have applied
that distinction, provide support or justification for such a radical
transformation of the meaning and scope of the amendment/revision
dichotomy.
That petitioners' proposal would mark a sharp departure from this
court's past understanding of the amendment/revision dichotomy is
further demonstrated by the circumstance that under petitioners'
approach, the people would have the ability -- through the initiative
process -- to extend a constitutional right to a disfavored group that
had not previously enjoyed that right, but the people would lack the
power to undo or repeal that very same extension of rights through
their exercise of the identical initiative process. Thus, for example,
had this court rejected the constitutional challenges to the existing
marriage statutes in its decision in the Marriage Cases, and had the
people responded by adopting an initiative measure amending the
privacy, due process, and equal protection provisions of the state
Constitution to guarantee same-sex couples equal access to the
designation of marriage, that measure would be viewed as a
constitutional amendment that properly could be adopted through the
initiative process. But if an initiative measure thereafter was
proposed to repeal those recently adopted changes to the state
Constitution, that measure, under petitioners' approach, would be
designated a constitutional revision, and the people would be
powerless to adopt that change through the initiative process. Again,
neither the history of the provisions governing the making of changes
to the California Constitution, nor the many past cases interpreting
and applying those provisions, support petitioners' assertion that the
amendment/revision distinction properly should be understood as
establishing such a �one-way street� or as mandating such a seemingly
anomalous result....
In advancing the claim that Proposition 8 should be characterized as a
constitutional revision rather than as a constitutional amendment,
petitioners also rely heavily upon the circumstance that the measure
was proposed directly by the people through the initiative process
rather than by the Legislature, implying that under the state
Constitution a measure proposed by initiative is more
�constitutionally suspect� than would be a comparable measure proposed
by the Legislature. Past California cases, however, provide no support
for the suggestion that the people's right to propose amendments to
the state Constitution through the initiative process is more limited
than the Legislature's ability to propose such amendments through the
legislative process. To the contrary, the governing California case
law uniformly emphasizes that ��it is our solemn duty jealously to
guard the sovereign people's initiative power, �it being one of the
most precious rights of our democratic process��� and that ��we are
required to resolve any reasonable doubts in favor of the exercise of
this precious right.�� The provisions of the California Constitution
draw no distinction between the types of constitutional amendments
that may be proposed through the initiative process as compared to
those that may be proposed by the Legislature, and our past cases
indicate that no such distinction exists.
([3]Hide most of the excerpt.)
Again, strikes me as quite correct.
References
1. http://volokh.com/archives/archive_2008_11_02-2008_11_08.shtml#1225923130
2. file://localhost/var/www/powerblogs/volokh/posts/1243363861.html
3. file://localhost/var/www/powerblogs/volokh/posts/1243363861.html
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