Thursday, March 05, 2009

Proposition 8 was an amendment, not a revision

Today, the California Supreme Court heard oral argument in the case filed by disgruntled busybodies arguing that the people of California's passage of Proposition 8 - an amendment to the California Constitution banning gay marriage - was itself unconstitutional. The legal question, everyone seems to agree, is whether Proposition 8 was an "amendment" or a "revision" to the California Constitution. What's the difference, you ask? Therein lies the debate.

Unfortunately, the California Supreme Court has never addressed the issue. However, most everyone I've read seems to be arguing that the difference is substantive. Some argue that the difference depends on just how much the proposed amendment/revision would change the Constitution (i.e., measuring the quantitative change), while others argue that the distinction is whether the particular change is "fundamental" or some other such important word (i.e., measuring the qualitative change).

All these arguments are wrong. The amendment/revision distinction is not a substantive question, but a procedural question. Here's the relevant text from the California Constitution regarding amendments and revisions:


SEC. 1. The Legislature by rollcall vote entered in the journal, two-thirds of the membership of each house concurring, may propose an amendment or revision of the Constitution and in the same manner may amend or withdraw its proposal. Each amendment shall be so prepared and submitted that it can be voted on separately.

SEC. 2. The Legislature by rollcall vote entered in the journal, two-thirds of the membership of each house concurring, may submit at a general election the question whether to call a convention to revise the Constitution. If the majority vote yes on that question, within 6 months the Legislature shall provide for the convention. Delegates to a constitutional convention shall be voters elected from districts as nearly equal in population as may be practicable.

SEC. 3. The electors may amend the Constitution by initiative.

SEC. 4. A proposed amendment or revision shall be submitted to the electors and if approved by a majority of votes thereon takes effect the day after the election unless the measure provides otherwise. If provisions of 2 or more measures approved at the same election conflict, those of the measure receiving the highest affirmative vote shall prevail.

Now, combine the above sections with Article 2, Section 8(d), of the Constitution, regarding the initiative process, which reads: "An initiative measure embracing more than one subject may not be submitted to the electors or have any effect."

The distinction between an amendment and a revision is clear: An amendment concerns a single subject, a revision concerns more than one subject. While the people, through the initiative process, may change the Constitution, but are limited to one subject at a time, only the Legislature may propose changes to the Constitution, to be voted on by electors in a single vote, that embrace more than one subject.

Proposition 8 was quite obviously limited to a single subject. It was therefore an "amendment" and not a "revision" which is precisely why no one raised this argument before Proposition 8 went on the ballot, when proposed propositions are routinely challenged on the grounds that they concern more than one subject.

That's it. End of analysis. Of course, don't bet on the California Supreme Court following the plain and totally obvious meaning of the above Constitutional text.


Blogger Michael Ejercito said...

They upheld Prop. 8

11:17 AM  

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