Posted by Eugene Volokh:
What If the Voters Overturn Other Constitutional Rights Decisions?
http://volokh.com/archives/archive_2009_05_24-2009_05_30.shtml#1243374540
A common argument against the constitutionality of Prop. 8 was to
hypothesize what would happen if voters overturn other constitutional
rights decisions, or for that matter repeal expressly secured
constitutional rights:
[U]nder the majority's view, it is not clear what sorts of state
constitutional constraints limit the power of a majority of the
electorate to discriminate against minorities. As petitioners point
out, �imagine if Perez v. Sharp, 32 Cal.2d 711 (1948), striking
down California's ban on interracial marriages, had been decided on
state constitutional grounds rather than federal constitutional
grounds. And imagine if a bare majority had attempted to overturn
that landmark ruling by enshrining the ban into the Constitution.�
Other equally unattractive hypotheticals suggest themselves. Under
the majority's reasoning, California's voters could permissibly
amend the state Constitution to limit Catholics' right to freely
exercise their religious beliefs (Cal. Const., art. I, § 4),
condition African-Americans' right to vote on their ownership of
real property (id., § 22), or strip women of the right to enter
into or pursue a business or profession ( id., § 8). While the
federal Constitution would likely bar these initiatives, the
California Constitution is intended to operate independently of
(art. I, § 24), and in some cases more broadly than (see, e.g.,
Fashion Valley Mall v. National Labor Relations Board (2007) 42
Cal.4th 850, 857-858), its federal counterpart. The majority's
holding essentially strips the state Constitution of its
independent vitality in protecting the fundamental rights of
suspect classes. And if the majority does not avow that such broad
constitutional changes could be made by amendment, but only more
�limited� ones, then I disagree with such an implicit distinction.
As discussed, denying gays and lesbians the right to marry, by
wrenching minority rights away from judicial protection and
subjecting them instead to a majority vote, attacks the very core
of the equal protection principle.
And these hypotheticals could likewise be raised not just as to the
initiative amendment process, but also the legislative revision
process, since one can imagine the same voters' electing enough
legislators who would support those voters' preferences. (To be sure,
that isn't politically likely, but neither are the other hypotheticals
particularly likely; they certainly haven't been enacted in the past,
even in times in which they might have been politically more
plausible.) So Justice Moreno's argument can't easily be cabined in a
way that would apply to the narrow question of what's an amendment and
what's a revision -- it would equally cast into doubt (or not cast
into doubt) the people's power to amend the constitution through
legislative proposal or through a constitutional amendment.
But it seems to me the answer to this is clear: Those amendments would
indeed be legally permissible changes to the California Constitution.
(One might distinguish limitations on voting rights, on the grounds
that they would entrench themselves, by stripping some people of the
legal right to repeal those amendments; but wherever such a
constitutional principle might or might not reside, that doesn't apply
to same-sex marriage, or many other examples.)
They would be immoral. In extreme cases, they might constitute a
sufficient moral justification for revolution (a matter I flag simply
because the possibility can't be denied, and because of course our own
U.S. Constitution is built in large part on a revolution against the
existing order, plus likely a slightly later, peaceful and broadly
accepted, coup against the existing order). They would violate the
U.S. Constitution, and thus would be struck down on those grounds. But
under the California Constitution, it seems to me that they should be
understood simply as the sovereign changing the Constitution in a way
that's very bad but that is consistent with that constitution.
In any event, what makes those provisions wrong is not that they are
legally "revisions" rather than "amendments" and thus illegal. What
makes them wrong is that they are morally wrong and thus immoral. But
ultimately that judgment about what is morally wrong, as I mentioned,
is under the California Constitution left to the sovereign people, and
not the sovereign's servants in the state supreme court.
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