A question for Constitutional scholars (or those who THINK they are...)

[damonm]

Here in CA, a Constitutional Amendment to ban same-sex marriage has qualified for the November ballot. The CA SC just ruled such a ban unconstitutional. So the question is:

Can a Constitutional Amendment be found unconstitutional? For example, if the US Constitution were to be amended so as to make slavery legal again, would that not be a violation of the 13th & 14th Amendments, and thus be unconstitutional?

How would something like this work?

[The Velveteen Ocelot]

1. No, the Constitution itself can't be unconstitutional.

That's why they made it so hard to amend -- so a lot of stupid shit wouldn't get in there that would become the supreme law of the land. If it's in the Constitution even the Supreme Court can't make it go away.

[Tesha]

62. If amendments are clearly in conflict, though, it is up to the courts to apply them.

A hypothetical amendment that established the
constitutionality of slave ownership would be
quite a challenge to the courts for exactly
the reason cited by the OP: its obvious con-
flict with several other amendments.

An amendment that defined a marriage would
be similarly challenging, though not to the
same "in your face" degree, especially if it
were silent on the question of civil unions
that conferred the same rights and responsi-
bilities as marriage (I don't know if the CA
amendment addresses civil unions or not.)

Tesha

[pt22]

2. No. By definition, a Constitutional Amendment is Constitutional.

It wouldn't work very damn well, that's for sure but it might work.

[onenote]

3. No. A constitutional amendment cannot be unconstitutional under the constitution amended

Thus, an amendment to a state constitution cannot be deemed unconstitutional under the state constitution. However, state constitutions are subordinate to the federal constitution and thus if the federal constitution was construed to protect the right of same sex couples to wed (something that unfortunately is not going to happen under the current SCOTUS), then the state constitutional provision would give way. (Similarly, if the federal constitution was amended to override state constitutional provisions or laws recognizing same sex marriage then, once again, the federal provision would govern and states like California could no longer recognize same sex unions.

[jody]

4. IMO the Constitution requires government to protect certain natural, inherent, inalienable, rights.

Freedom against slavery is one such right and IMO an amendment to make slavery legal would indeed be unconstitutional.

The rights enumerated in the Bill of Rights and unenumerated but protected by the 9th Amendment are what protect the minority against a simple majority plus one vote or three quarters of the state legislatures voting to amend our Constitution making slavery legal.

[The Velveteen Ocelot]

6. That's incorrect, unfortunately.

If the 13th Amendment, which prohibits slavery, were to be repealed through legitimate procedures, there would be no express prohibition of slavery. However, other parts of the Constitution could still be interpreted as prohibiting it -- but those interpretations depend on who's on the Supreme Court. Whatever is in the Constitution is by definition constitutional.

[jody]

8. If my statement is "incorrect", what do you mean by "other parts of the Constitution could still be

interpreted as prohibiting it"?

That is inconsistent with your statement "Whatever is in the Constitution is by definition constitutional."

If the Constitution was amended to "legalize murder", would not SCOTUS then have the responsibility of determining whether that amendment was in conflict with basic rights protected by the Constitution?

[The Velveteen Ocelot]

9. Whatever is in the Constitution, including the amendments, IS the Constitution.

The Bill of Rights was added in 1791 to the original 1789 constitution because some of the framers felt the procedural protections it supplied needed to be supplement by specifically enumerating the individual rights implied in the procedural content of the 1787 version. What I meant was that if the 13th Amendment (which wasn't part of the original Bill of Rights, but was added in 1865) were merely repealed, the Supreme Court could still interpret other clauses of the Constitution as prohibiting it, e.g., the 4th and 8th Amendments.

However, in the extremely unlikely event that instead of merely repealing the 13th Amendment, the Constitution were to be amended to specifically legalize slavery, that would be, by definition, Constitutional. This is why the fundies want so badly to amend the Constitution to specifically prohibit same-sex marriage. It would become part of the Constitution, and neither the Congress nor the Supreme Court could do anything about it. Where something is specifically stated, there's no room for interpretation. I hope that's a little clearer.

[jody]

10. But you said "other parts of the Constitution could still be interpreted as prohibiting it" and

that's precisely what I said re enumerated and unenumerated rights.

You seem to be saying that an amendment allowing anyone to murder another would be constitutional but you then say it could be prohibited by something else in the Constitution.

That's just another way of saying an amendment could be unconstitutional.

[The Velveteen Ocelot]

12. I think you may be

confusing a situation where the Constitution does not *specifically* address an issue (let's say the 13th Amendment is repealed so there is no specific prohibition) with a situation where the it does specifically do so -- for example, say there's a new amendment that *specifically authorizes* slavery. In the first instance the Supreme Court could use other clauses to *infer* a prohibition because the Constitution neither expressly prohibits nor authorizes it, but the 4th and 8th amendments could be interpreted as doing so. In this case there is no inconsistency and interpretation is possible. As another example, there is no specific right to privacy stated in the Constitution, but in Griswold v. Connecticut the Supreme Court has found a "penumbral" right to privacy in the Ninth Amendment, which says "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

In the second hypothetical, however, where the Constitution was amended to *expressly* authorize slavery, the Supreme Court would have no basis for using other clauses, even the Ninth Amendment, to come up with a contrary interpretation. They would be stuck with the specific words of the new amendment.

[pt22]

15. Exactly. Like in Bush vs. Gore, they were forced to at least invent a rationale

under the Fourteenth (as flawed and bogus as it was) to justify stopping the Florida recount...and it was only possible because that -specific- question wasn't (and isn't) addressed by the Constitution. Where there is room for interpretation, it will be done!

[jody]

17. My #4 dealt narrowly with "natural, inherent, inalienable, rights". Please provide a SCOTUS case

that says the Constitution can be amended to take away such rights.

Note that inalienable rights are "incapable of being alienated, surrendered, or transferred".

As such, they We the People can never surrender or transfer those rights to government.

NOTE FOR EXAMPLE:
A DECLARATION OF THE RIGHTS OF THE INHABITANTS OF THE COMMONWEALTH OR STATE OF PENNSYLVANIA 28 Sept. 1776
"That all men are born equally free and independent, and have certain natural, inherent and inalienable rights, amongst which are, the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety."

[pt22]

21. The phrase "inalienable rights" does not appear in the Constitution.

You have confused it with the Declaration of Independence. You keep asking for a SCOTUS case but there are none because of the way the Constitution works. I know you don't like it, I don't much either but it is what it is.

[jody]

24. The phrase "inalienable rights" are in PA and VT constitutions and those states clearly understood

those rights to be part of the enumerated rights in the BOR or protected by the 9th amendment.

SCOTUS in BUTCHERS' UNION CO. v. CRESCENT CITY CO., 111 U.S. 746 (1884) spoke to inalienable rights.

As in our intercourse with our fellow-men certain principles of morality are assumed to exist, without which society would be impossible, so certain inherent rights lie at the foundation of all action, and upon a recognition of them alone can free institutions be maintained. These inherent rights have never been more happily expressed than in the declaration of independence, that new evangel of liberty to the people: 'We hold these truths to be self-evident'-that is, so plain that their truth is recognized upon their mere statement-'that all men are <111 U.S. 746, 757> endowed'-not by edicts of emperors, or deerees of parliament, or acts of congress, but 'by their Creator with certain inalienable rights.'-that is, rights which cannot be bartered away, or given away, or taken away, except in punishment of crime-'and tha among these are life, liberty, and the pursuit of happiness; and to secure these'-not grant them, but secure them- 'governments are instituted among men, deriving their just powers from the consent of the governed.' Among these inalienable rights, as proclaimed in that great document, is the right of men to pursue their happiness, by which is meant the right to pursue any lawful business or vocation, in any manner not inconsistent with the equal rights of others, which may increase their prosperity or develop their faculties, so as to give to them their highest enjoyment. The common business and callings of life, the ordinary trades and pursuits, which are innocuous in themselves, and have been followed in all communities from time immemorial, must therefore be free in this country to all alike upon the same conditions. The right to pursue them, without let or hinderance, except that which is applied to all persons of the same age, sex, and condition, is a distinguishing privilege of citizens of the United States, and an essential element of that freedom which they claim as their birthright. It has been well said that 'the property which every man has in his own labor, as it is the original foundation of all other property, so it is the most sacred and inviolable. The patrimony of the poor man lies in the strength and dexterity of his own hands, and to hinder his employing this strength and dexterity in what manner he thinks proper, without injury to his neighbor, is a plain violation of this most sacred property. It is a manifest encroachment upon the just liberty both of the workman and of those who might be disposed to employ him. As it hinders the one from working at what he thinks proper, so it hinders the others from employing whom they think proper.' Smith, Wealth Nat. bk. 1, c. 10.

[onenote]

30. self delete

[onenote]

32. The concurring opinion cited is not reflective of the current state of the law

The cited language is from Justice Field's concurring opinion in Butchers and it didn't even represent the view of a majority if the SCOTUS at the time it was written. Rather, it was essentially a reiteration of Justice Field's dissent from the Slaughter House cases in which he argued that the Constitution (specifically the fifth and fourteenth amendments) protected "substantive" due process as well as procedural due process. The substantive due process view eventually won over a majority of the court, and in the extreme form advocated by Fields et al, was used to protect businesses over efforts by the states and federal government to regulate them. It was the pro-substantive due process views of a majority of the court that threatened to undo FDR's New Deal legislation and led him to attempt his court packing plan.

Eventually, the pendulum swung back and substantive due process, as it exists today, is essentially limited to a handful of "fundamental" rights. Whether a federal legislative (or state legislative or constitutional) provision is constitutional will depends on whether it can survive the appropriate level of scrutiny (which may range from rational to intermediate to strict, depending on the right claimed to be at issue). And there is no instance of the SCOTUS ever suggesting that a federal constitutional amendment would itself be subject to constitutional scrutiny under a substantive due process analysis.

[jody]

35. You said “’inalienable rights’ does not appear in the Constitution” and I cited one instance where

SCOTUS recognized that “inalienable rights” do exist and affected its decision process.

A more current instance is NEW YORK CITY BD. OF ESTIMATE v. MORRIS, 489 U.S. 688 (1989)

These cases are based on the propositions that in this country the people govern themselves through their elected representatives and that "each and every citizen has an inalienable right to full and effective participation in the political processes" of the legislative bodies of the Nation, State, or locality as the case may be. Reynolds v. Sims, 377 U.S., at 565 . Since "{m}ost citizens can achieve this participation only as qualified voters through the election of legislators to represent them," full and effective participation requires "that each citizen have an equally effective voice in the election of members of his . . . legislature." Ibid. As Daniel Webster once said, "the right to choose a representative is every man's portion of sovereign power." Luther v. Borden, 7 How. 1, 30 (1849) (statement of counsel). Electoral systems should strive to make each citizen's portion equal. If districts of widely unequal population elect an equal number <489 U.S. 688, 694> of representatives, the voting power of each citizen in the larger constituencies is debased and the citizens in those districts have a smaller share of representation than do those in the smaller districts. Hence the Court has insisted that seats in legislative bodies be apportioned to districts of substantially equal populations. Achieving "`fair and effective representation of all citizens is . . . the basic aim of legislative apportionment,' {Reynolds, supra}, at 565-566; and for that reason that {Reynolds} insisted on substantial equality of populations among districts." Gaffney v. Cummings, 412 U.S. 735, 748 (1973).

I offer this only to show that SCOTUS does recognize that inalienable rights exist and quoted Daniel Webster "the right to choose a representative is every man's portion of sovereign power."

[onenote]

42. the right of every citizen to full and effective participation is inalienable to the extent

the constitution makes it so. But it doesn't mean the constitution can't be changed or that the right is in fact inalienable for all citizens in all cases. The right of citizens to vote (i.e., the right to full and effective participation" in political processes) is restricted (i.e alienated) all the time. The right to vote of citizens who are convicted felons is often restricted. The right to vote of citizens who are below a certain age is restricted. In the past, the right to vote was restricted for citizens based on race or gender. It took Constitutional amendments to change that situation. It also took a constitutional amendment to guarantee the right to vote in both federal and state elections to citizens who were 18. Congress tried to make 18 the universal voting age by statute and the SCOTUS struck it down.

Under the circumstances, it is quite clear that if the Constitution was amended to raise the voting age back up or to restrict the voting rights of specific classes of citizens, those constitutional amendments would be immune from constitutional challenge. Given the state of the law, even merely repealing the 26th amendment would effectively restore to the states the right to set the voting age at whatever age they want. ANd repealing the 19th amendment would leave the door open for the states to constitutionally enact laws restricting the right to vote on account of the voters sex.

[jody]

44. Understand but has the Constitution ever been amended to take away an inalienable right?

I understood the OP author to mean that when it asked about slavery.

The debate about the BOR was whether it was necessary to add statements to the Constitution that would protect individuals against a central government using its power to make citizens subservient to government.

Given the political environment at the time, I don't believe it was by chance that Pennsylvania (1776) and Vermont (1777) included in their constitutions the following:

A DECLARATION OF THE RIGHTS OF THE INHABITANTS OF THE COMMONWEALTH OR STATE OF PENNSYLVANIA 28 Sept. 1776

That all men are born equally free and independent, and have certain natural, inherent and inalienable rights, amongst which are, the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety."

A DECLARATION OF THE RIGHTS OF THE INHABITANTS OF THE STATE OF VERMONT, 8 July 1777

THAT all men are born equally free and independent, and have certain natural, inherent and unalienable rights, amongst which are the enjoying and defending life and liberty; acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety.

IMO the Bill of Rights suggests they are rights retained by each individual as a sovereign entity, a protection against the tyranny of a simple majority that could use such miniscule authority as 50% of the vote plus one to abuse the minority.

If it's possible for three quarters of the states to use their power to amend the Constitution and take away inalienable/unalienable rights, then the People have a right to revolt.

Thanks for the exchange, :hi:

ON EDIT ADD

See my #45

[onenote]

51. You are right that it hasn't happened. Yet.

Could it happen? I certainly can't rule it out. Consider that around the time of the Civil War, the "Corwin" Amendment was proposed, approved by the House and SEnate and sent to the states. It read: "No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State." (THat Amendment, if approved, would've raised an interesting question -- can the Constitution be amended to prevent the Constitution from being amended? And can a subsequent amendment amend that amendment?)

More recently, efforts to ratify amendments that might be viewed as guaranteeing inalienable rights have failed, such as the ERA and the DC Voting Rights Amendment. Not the same as taking rights away, but effectively leaving them unprotected.

[jody]

58. See my #45 and #49 citing state constitutions that prohibit state governments from destroying

inalienable rights.

How could those nine state legislatures vote to approve an amendment to the Constitution that abolishes an inalienable right when their state governments are prohibited from such actions?

As a corollary, would the 14th Amendment apply such that the other 41 states are prohibited from voting to abolish an inalienable right just as the cited 9 are so restricted?

[The Velveteen Ocelot]

23. Sorry, you're going to have to do your own legal research.

I've had to do way too much of it over the last 20 years as it is, and I generally expect to be paid. :)

[jody]

25. I've done my share over the past 50 years and I've been paid except when I helped friends and an

occasional enemy. :hi:

[The Velveteen Ocelot]

26. Then this should be a snap...

[jody]

28. It was and you are wrong. Have a nice day. n/t

[BzaDem]

41. I hope you aren't serious. :)

Obviously, if there is a constitutional amendment specifically authorizing or prohibiting something, the Supreme Court cannot in good faith say that a previous amendment takes precedence. Of course, technically, the Supreme Court can release whatever opinions they want, saying whatever they want. They could release an opinion saying that the 14th amendment requires that Presidents serve lifetime terms (or that all people must practice one religion, for that matter). But of course, they have no standing army to enforce their decisions, and they would be ignored. Aside from that case (assuming the Supreme Court decides to be bound by the law and the Constitution), any later amendment that is so specific as to remove an issue from interpretation cannot be ignored because of an earlier amendment.

[jody]

43. If government can eliminate an inalienable right, e.g. freedom of religion or speech, then it cannot

be an inalienable right.

I do not question whether government does or does not have the power to take away an inalienable right.

I question whether such an act is or is not constitutional in that our government derives its power from the consent of the people, each contributing a small part of her/his sovereignty.

IMO the Bill of Rights suggests they are rights retained by each individual as a sovereign entity, a protection against the tyranny of a simple majority that could use such miniscule authority as 50% of the vote plus one to abuse the minority.

I know that ultimately it is up to the people to protect the inalienable rights of a minority and as Lincoln said, "This country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing government, they can exercise their constitutional right of amending it, or their revolutionary right to dismember it or overthrow it."

SCOTUS does recognize inalienable/unalienable rights and has used those phrases in context showing it affected the court's decision.

I'm intrigued by the OP's question and the posts in this thread.

If it's possible for three quarters of the states to use their power to amend the Constitution and take away inalienable/unalienable rights, then the People have a right to revolt.

I've enjoyed the exchange, :hi:

ON EDIT ADD
See my #45

[BzaDem]

46. You say that the Bill of Rights protects "inalienable" rights. My point is that the Bill of Rights

can be repealed. The only provisions that cannot be repealed are the things listed in Article 5 itself (relating to the slave trade in 1808, and equal representation in the Senate). Whatever the SCOTUS has said about inalienable rights, it has said under the assumption that the source of those rights (the Bill of Rights/9th amendment) remains in our constitution and is not expressly contradicted by later amendments. This is basic information taught in any Constitutional law course. The Constitution is derived from the consent of the people, but that consent is determined in a manner in accordance with the constitution (2/3 of Congress, 3/4 of state legislatures). Nothing requires unanimous consent. In fact, the original Articles of Confederation did require unanimous consent to modify the articles, which was a large part of the reason they were scrapped (as nothing could get done).

[jody]

50. I keep asking for a precedent that the BOR can be repealed. Absent such proof, you are just stating

your opinion as am I.

I will concede your point if you can prove your assertion.

[BzaDem]

53. There is no precedent either way. That means that you need to look at the text and history.

Of course there is no precedent either way, since it has never been tried. This is much more of a theoretical argument than a practical one, since the political branches would likely never repeal the BOR.

Many legal issues have a correct answer, regardless of precedent going in either direction. Courts often decide issues without any applicable precedent whatsoever. In fact, courts sometimes ignore precedent even when it is directly applicable, if the text and history in question go the other way. In the absence of judicial precedent either way, one can look to the actual text of Article 5:

"The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."

Specifically, any amendment properly ratified "shall be valid to all Intents and Purposes, as Part of this Constitution." Furthermore, the article itself lists two exceptions to this rule (the 1808 slave trade and equal representation in the senate), and does not list any others (or provide any language indicating there can be others). The fact that the Bill of Rights was not even part of the original Constitution hurts your case even more. It is hard to argue that the text of Article 5 (which I think we can both agree governs this issue) somehow implicitly means that the Bill of Rights cannot be repealed, when the Bill of Rights was not even part of the Constitution at the time the Constitution was ratified.

Thus, in the absence of precedent either way, the text and history (in 1789) works strongly against the argument that some amendment made after 1789 can be made permanent and cannot be repealed.

[Leopolds Ghost]

55. Not true - The political branches are repealing the BOR legislatively as we speak.

On the grounds that the laws they are passing specifically
are exempt from legal review with regards to proof of injury
and therefore proof of consitutionality. It is a perfect
system they are constructing to turn the Constitution into
a dead letter just like the Romans did to their republic.

[Leopolds Ghost]

54. How can the source of inalienable rights be the Bill of Rights? That's just not correct

The Bill of Rights enumerates a variety of rights that are "retained
by the people whether or not noted in the Bill of Rights" as the 9th
Amendment itself states. And you cannot repeal a truism like the 9th
Amendment without removing the popular mandate for American Democracy
(i.e. you can repeal the 9th Amendment but in doing so you would give
every sovereign citizen the right to overthrow the tyranny thereby
created.) Amending the constitution to declare that inalienable
rights proceed from the Constitution itself and do not precede it
would be in violation of a truism and all judicial understanding
of common law, and inherently false.

It would be like amending the constitution to declare that
democracy = dictatorship or that pi = 3.

In other words, it could be done, just as according to church
doctrine on separation of church and state, state power has the
right to compel you to act against your conscience but it cannot
take away your right to refuse or resist. Inalienable sovereignty
is on the same plane as religious belief, preceding institution
of government.

[onenote]

52. It wouldn't be the government that eliminated an "unalienable" right, it would be the people

By amending the constition. And if the people amend the Constitution to, for example, limit free speech in some ways, or to change the establishment clause, or if the Second Amendment was repealed, etc., the people have no Constitutional "right" to revolt than they would with respect to any other amendment to the constitution. A moral right? Sure. But no legal, constitutional right.

[Chan790]

27. Nope.

Any amendment is a clarification, even if that clarification directly contradicts. Specificity trumps generality, later trumps earlier. That's the quick and dirty answer to the hypothetical.

However, entire courses and semesters could be and have been dedicated to the posed question arguing nuances and interpretations. It's not a simple question and it's never really come up. The devil is in the details and the makeup of the SCOTUS at that time. Even two undergraduate semesters of Con. Law have not given me a crystal ball into the minds of Roberts, et. al.

An Example:

If they passed an amendment to the US Constitution declaring Christianity to be the state religion and it were ratified, even without repealing the establishment clause, then it would not be possible to argue before SCOTUS that the later amendment is unconstitutional in its' violation of the establishment clause.

It might be possible to argue however that the establishment clause does not merely preclude the formation of a state religion but its practice; such an interpretation would render the later amendment a paper tiger as it would be a statement of fact without a capacity to be applicable. That's why later amendments usually alter rather than contradict earlier ones...to prevent these sorts of arguments entirely.

[jody]

29. See my #17 and #24. n/t

[pt22]

7. Constitutions require exactly what they say that they do. An amendment

to permit slavery would absolutely be "legal" (and indeed the 'law of the land') if it were ratified as prescribed.

[jody]

11. Please provide a SCOTUS case that supports your assertion. n/t

[pt22]

14. I don't need one. SCOTUS cannot reverse a Constitutional provision.

Otherwise there would be no point to amendments, or indeed, to a constitution at all. I hope you were joking...
:shrug:
edit: ocelot addressed this quite nicely in post #12
:-)

[jody]

18. See my #17. n/t

[ProdigalJunkMail]

16. the problem with that is that the definition of 'man' has changed

for the better. A black person is no longer considered 2/3 (or whatever number was given) of a person...but a full person (and not just for the purpose of census and vote distribution). The whole word 'liberty' becomes a problem for those who would allow slavery if the 13th were repealed. It is an interesting exercise in intellectual and constitutional gymnastics, but slavery is now illegal, not per the 13th, but through the definition of 'person'...at least in my humble opinion...which is frequently wrong...

sP

[pt22]

19. Well, the 13th doesn't address fractional persons, so if it were to be repealed

(not that there's any chance), it would take some very inventive and clever judicial manipulation to keep slavery illegal based strictly on the concept of liberty (which is itself subject to limitations...moreso every day.)

[ProdigalJunkMail]

22. the combination of 14 and 15 might work but it guess those

could be repealed as well. The original sections of the constitution used the term free persons, indians, bond servants and three-fifths of all others. With all men in the US now being considered equal (in terms of voting rights) then I would think that concept alone would protect from the loss of all amendments related to this matter.

Ah, the benefits of a pseudo-enlightened society...

sP

[LiberalFighter]

5. If the procedure used to amend the Constitution was wrong. Yes

Some may say that creating an amendment that takes away rights would be unconstitutional.

[Dark]

13. I think only the Fed SC can rule a state amendment unconstitutional.

The ban they ruled on wasn't an amendment. Amendments are the only thing that can trump a SC ruling.

[TexasObserver]

20. The new Constitutional Amendment would be viewed as superseding any conflicting provisions.

So, YES, the Constitutional amendment would override the portion of the California constitution upon which the California court based its decision.

Look at the US Constitution. The 18th amendment imposed prohibition. The 21st struck the 18th. The 21st supersedes the 18th.

If the constitutional amendment passes, it will be up to the California Supreme Court to interpret it, but they should rule that it overrides the provision upon which they based their prior decision.

Will that mean the California Supreme Court could rule, after passage of a new constitutional amendment, that there is no longer a constitutional right to gay marriage? Unfortunately, YES.

Would such a ruling negate marriages that took place until the new ruling? NO.

[hfojvt]

31. an amendment modifies the constitution

Thus the constitution has, in theory, been changed so that what was once unconstitutional, no longer is.

[Bucky]

33. Did the Cali SCOTUS mabye say the process for amending the state constitution was unconstitutional?

It's also possible that the state constitutional amendment conflicts with the US Constitution. State constitutions have to conform to federal standards, altho I can't think what in the US Constitution or Amendments would protect same sex marital rights.

I'm assuming that it's a proposed amendment to the state constitution since state voters can't legally vote for a federal amendment, at least not with a binding vote.

[slackmaster]

36. It would have to be a federal 14th Amendment case

And the outcome would have widespread implications in many states.

[Bucky]

39. Not necessarily. The Cal SCOTUS's ruling can be weighed by another state's judge, but...

One state court's ruling would not be a binding precedent to other states.

I can't find an article on any decisions by the CA Scotus since they last dismissed the ban last week because "sexual orientation, like race or gender, does not constitute a legitimate basis upon which to deny or withhold legal rights".

No doubt California's own state constitution forbids gender-based discrimination.

[DadOf2LittleAngels]

40. Because its in the state constitution

the process of amending can not be unconstitutional..

[slackmaster]

34. I believe there are two ways a state constitutional amendment could be unconstitutional

A. The amendment was not created in accordance with one of the existing prescribed procedures, or

B. The amendment would violate the federal Constituation. For example, California could not legalize slavery or grant itself the power to declare war.

[DangerDave921]

37. SCOTUS cannot overturn amendment

The SCOTUS has no jurisdiction to rule on whether an amendment -- assuming the process has been followed correctly -- is constitutional or not. If it is passed, then that amendment becomes part of the Constitution.

Interestingly, the President plays no role in it either. He can't veto it.

[BzaDem]

38. There are actually two things that cannot be amended in the U.S. constitution.

One is that the slave trade cannot be banned until 1808. The other is that the Senate must remain a body providing equal representation to all states (unless a state agrees to have its representation cut).

Article 5:

... Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

However, everything else can be amended. For example, the 18th amendment (establishing prohibition) was overturned by the 21st amendment (ending prohibition).

[jody]

45. Kentucky & Alabama constitutions seem to prevent their legislatures from voting on an amendment to

the Constitution that would take away a right enumerated in their BILL OF RIGHTS

Kentucky Constitution, Section 26, General powers subordinate to Bill of Rights -- Laws contrary thereto are void.

To guard against transgression of the high powers which we have delegated, We Declare that every thing in this Bill of Rights is excepted out of the general powers of government, and shall forever remain inviolate; and all laws contrary thereto, or contrary to this Constitution, shall be void.

ON EDIT ADD
Alabama Constitution, SECTION 36

Construction of Declaration of Rights.
That this enumeration of certain rights shall not impair or deny others retained by the people; and, to guard against any encroachments on the rights herein retained, we declare that everything in this Declaration of Rights is excepted out of the general powers of government, and shall forever remain inviolate.

[BzaDem]

47. State constitutions can say whatever they wan't, provided that it doesn't violate the USconstitution

If a state constitutional provision did violate the U.S. constitution, the U.S. Supreme Court could strike it down (as it did in Romer v. Evans).

[jody]

49. Seven other states agree with KY and AL. Seems like SCOTUS would think carefully before declaring

the state constitutions I cited to be unconstitutional when the Constitution says "The United States shall guarantee to every State in this Union a Republican Form of Government".

Existing state constitutions are an exercise of that "Republican Form of Government" or they would have been rejected by SCOTUS long ago.

Arkansas Constitution

29. Enumeration of rights of people not exclusive of other rights - Protection against encroachment.

This enumeration of rights shall not be construed to deny or disparage others retained by the people; and to guard against any encroachments on the rights herein retained, or any transgression of any of the higher powers herein delegated, we declare that everything in this article is excepted out of the general powers of the government; and shall forever remain inviolate; and that all laws contrary thereto, or to the other provisions herein contained, shall be void.

Louisiana Constitution

§1. Origin and Purpose of Government

Section 1. All government, of right, originates with the people, is founded on their will alone, and is instituted to protect the rights of the individual and for the good of the whole. Its only legitimate ends are to secure justice for all, preserve peace, protect the rights, and promote the happiness and general welfare of the people. The rights enumerated in this Article are inalienable by the state and shall be preserved inviolate by the state.

Michigan Constitution

Acts void.

21. All acts of the legislature contrary to this or any other article of this Constitution, shall be void.

North Dakota Constitution

Section 20. To guard against transgressions of the high powers which we have delegated, we declare that everything in this article is excepted out of the general powers of government and shall forever remain inviolate.

Ohio Constitution

§ 1.20 Powers reserved to the people (1851)

This enumeration of rights shall not be construed to impair or deny others retained by the people; and all powers, not herein delegated, remain with the people.

Pennsylvania Constitution

Section 25.
To guard against the transgressions of the high powers which we have delegated, we declare that everything in this article is excepted out of the general powers of government and shall forever remain inviolate.

Texas Constitution

Section 29 - PROVISIONS OF BILL OF RIGHTS EXCEPTED FROM POWERS OF GOVERNMENT; TO FOREVER REMAIN INVIOLATE

To guard against transgressions of the high powers herein delegated, we declare that everything in this "Bill of Rights" is excepted out of the general powers of government, and shall forever remain inviolate, and all laws contrary thereto, or to the following provisions, shall be void.

[BzaDem]

56. Of course state constitutions can be reviewed by federal courts.

The Republican government clause does not preclude the SCOTUS from deciding on the federal constitutionality of state constitutions. Just read Romer v. Evans, where they threw out an amendment to the Colorado constitution.

All those provisions in the state constitutions that you cited in the above post are in no disagreement with the U.S. constitution, so they would not be struck down by the SCOTUS. However, if a state constitutional provision ever did violate the U.S. constitution or federal statutes, it would be struck down by the SCOTUS. For example, if a state constitution had an amendment saying that "unborn children have the right not to be aborted," any federal court could strike that down as violating Roe v. Wade (a federal constitutional decision). If states passed a constitutional amendment saying that a state mint had the right to coin money, any federal court could strike that down as violating the U.S. Constitution.

Again, if you are confused about the fact that parts of state constitutions can be struck down by federal courts, just read Romer v. Evans. That is a basic principle of federalism. Federal court review of state constitutions does not violate the Republican Government clause in any way.

[jody]

57. I know about federal review of constitutions but the examples to date do not involve inalienable

rights.

You are claiming that SCOTUS can rule that state constitutions that prohibit its governments from destroying inalienable rights are in fact unconstitutional.

That may be but absent proof, I must say that remains to be proven.

[BzaDem]

59. I'm not claiming that.

In fact, I stated the opposite:

"All those provisions in the state constitutions that you cited in the above post are in no disagreement with the U.S. constitution, so they would not be struck down by the SCOTUS. "

However, if the US constitution were modified to take away rights you call "inalienable" in such a way that the state constitutional provisions would then conflict with the US constitution and/or laws, THEN they could be struck down. Of course there is no precedent for that, since the BOR has not been formally amended away, but the text/history of Article 5 (combined with the supremacy clause) make that clear (as I discussed in an above post). A state can do whatever it wants within its own borders if and only if it does not conflict with the federal constitution or federal law. A legal fact does not need precedent to be correct.

Luckily, such a doomsday scenario will likely never happen :)

[jody]

60. Thanks, I overlooked the point you made. I'm intrigued by the topic because SCOTUS this month will

say whether the Second Amendment protects an individual or collective right to keep and bear arms. The case is D.C. v. Heller.

Experts expect the decision will be that the 2nd protects an individual right recognizing along with most states that the 2nd protects an inalienable right.

If that happens, groups that want to ban handguns or semiautomatic firearms or all firearms will refocus their effort toward repealing the 2nd.

That would bring up the question of whether a state legislature could vote to ratify an amendment repealing the 2nd when their state constitutions expressly prohibits that legislature from voting to repeal enumerated inalienable rights that include the right to keep and bear arms?

[BzaDem]

61. That's an interesting question.

My guess would be that state legislatures could still vote up or down on such a federal amendment without worrying about their state constitution. The state constitution might say that state legislators can't vote to repeal their state amendment that prevents banning of firearms, but if it were to extend to whether state legislators could vote to repeal a federal amendment, that would be patently violating the supremacy clause.

However, even if the federal 2nd amendment were repealed, the state 2nd amendment could still stand. The only reason the state 2nd amendment (prohibiting banning of firearms) would fall would be if there were a federal law that contradicted that amendment (say, a federal law banning all guns). But it is questionable whether the U.S. constitution at this point even gives Congress the authority to pass a law banning all handguns (even without the 2nd amendment), since Congress has to stick within its enumerated powers in Article 1.

If the 2nd amendment were repealed nationally, it would still probably be up to the states whether to have their own 2nd amendments.

But it is not likely that the 2nd amendment will be repealed any time soon. I'm not even sure if a majority of *Democratic* congressmen and senators would vote for such an amendment, given political realities. It's pretty clear from the oral argument in Heller that the Supreme Court will grant an individual right. The big question is whether or not they are going to incorporate the 2nd amendment against the states. If they don't, then it only applies to the Federal government (and thus Washington D.C. and other federal territories), and the decision would therefore primarily be symbolic. But if they do incorporate it against the states, that will be a huge, huge change. If that happens, many gun control laws currently on the books may be thrown out (depending on how far the SCOTUS goes in Heller).

[BlooInBloo]

48. Teh stupid! It BURNS!

Just read Greenwald on the decision and be done with it.