Posted by Eugene Volokh:
The California Supreme Court on Attorney General Jerry Brown's Arguments
Against Prop. 8:
http://volokh.com/archives/archive_2009_05_24-2009_05_30.shtml#1243364317
I again think the court's reasoning is quite correct (emphasis in
original, some paragraph breaks added):
In his briefing before this court, the Attorney General agrees with
our conclusions that Proposition 8 constitutes a constitutional
amendment rather than a constitutional revision, and that the
measure does not violate the separation of powers doctrine. The
Attorney General, however, advances a novel, alternative theory
under which he claims Proposition 8 should be held invalid. Relying
largely on the circumstance that article I, section 1 of the
California Constitution characterizes certain rights as
�inalienable,� the Attorney General maintains that �Proposition 8
should be invalidated even if it is deemed to amend the
Constitution because it abrogates fundamental rights protected by
article I without a compelling interest.� ...
[But] the �inalienable� nature of a constitutional right never has
been understood to preclude the adoption of a constitutional
amendment that limits or restricts the scope or application of such
a right. As noted above, from the beginnings of our state
constitutional history, the right of the people �to alter or
reform� the provisions of the Constitution itself has been
understood to constitute one of the fundamental rights to which
article I, section 1 refers, and California's 1849 Constitution
enshrined this right as an integral part of the original
Declaration of Rights in former article I, section 2, which
provided: �All political power is inherent in the people.
Government is instituted for the protection, security, and benefit
of the people; and they have the right to alter or reform the same,
whenever the public good may require it.�
Indeed, the drafters of the 1849 Constitution, in their message
submitting the proposed Constitution to the people of California,
expressly described the people's right to alter or reform the
Constitution as an �inalienable right.� In like manner, when the
people's authority to propose and adopt constitutional amendments
by initiative was added to the California Constitution in 1911, the
constitutional provision spoke of the initiative �not as a right
granted the people, but as a power reserved by them.�
Accordingly, there is no basis for suggesting that the inalienable
rights set forth in article I, section 1, and the other provisions
of the Declaration of Rights, are of a higher order than -- and
thus exempt from -- the people's right to �alter or reform� the
Constitution through either the legislative or the initiative
constitutional amendment process. Indeed, a review of the current
version of the constitutional provisions contained within article
I's Declaration of Rights demonstrates that modification of such
rights through the amendment process has occurred throughout our
state's history.
In urging this court to confer upon the �inalienable rights�
terminology of article I, section 1 a much more sweeping and far
reaching meaning than it traditionally has borne, the Attorney
General cites selected excerpts from a number of mid-19th-century
opinions that gave voice to the natural-rights jurisprudence that
was common in that era. As pointed out in the response filed by
interveners, however, the expansive natural-rights jurisprudence of
that time long has been discredited and, moreover, even the cited
jurists never suggested that courts possess the authority to
invalidate an explicit constitutional amendment, adopted through a
constitutionally prescribed procedure, on the ground that the
amendment is inconsistent with the scope of a right previously
embodied in the Constitution. As discussed at length above, on
numerous occasions in the past this court's interpretation of the
fundamental constitutional protections accorded by the state
Constitution to the �life and liberty� of those accused of crime
has been modified by constitutional amendments proposed and adopted
through the initiative process, and the constitutional validity of
those amendments repeatedly has been sustained in our prior
decisions. In short, the Attorney General's position finds no
support in the governing California authorities.
In defending his argument, the Attorney General emphasizes that he
�is duty bound to uphold the whole of the Constitution, not only
the People's reservation of the initiative power, but also the
People's expression of their will in the Constitution's Declaration
of Rights.� When we examine the entirety of the California
Constitution, however, we find nothing that exempts article I,
section 1 -- or any other section of the Constitution -- from the
amendment process set forth in article XVIII.... [W]e would exceed
the well-established and time-honored limits of the judicial role
were we to take it upon ourselves to fashion such a restriction
upon the present and future right of the people to determine the
content of the Constitution that governs our state.
[Footnote: As one legal commentator has explained: �To empower the
courts not simply to review the procedures whereby amendments were
adopted but also to void amendments on the basis of their
substantive content would surely threaten the notion of a
government founded on the consent of the governed.� (Viles, The
Case Against Implicit Limits on the Constitutional Amending Process
in Responding to Imperfection (Levinson edit.1995) 191, 198; see
also Tribe, A Constitution We Are Amending: In Defense of a
Restrained Judicial Role (1983) 97 Harv. L.Rev. 433, 442 [�allowing
the judiciary to pass on the merits of constitutional amendments
would unequivocally subordinate the amendment process to the legal
system it is intended to override and would thus gravely threaten
the integrity of the entire structure�].)]
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