CA Supreme Court on inalienable rights, pg 10 of Strauss v. Horton 5/26/09 (Prop 8)

[jody]

ON EDIT ADD: This is a legitimate post for DU's Guns forum because it raises questions about the "right to bear arms" contained in KY's constitution that I cited for discussion.

No interest on DU’s Civil Liberties forum so I’ll cross post to a more enlightened audience.

Strauss v. Horton 5/26/09

The Attorney General, in his briefing before this court, has advanced an alternative theory — not raised by petitioners in their initial petitions — under which he claims that even if Proposition 8 constitutes a constitutional amendment rather than a constitutional revision, that initiative measure nonetheless should be found invalid under the California Constitution on the ground that the “inalienable rights” embodied in article I, section 1 of that Constitution are not subject to “abrogation” by constitutional amendment without a compelling state interest. The Attorney General’s contention is flawed, however, in part because, like petitioners’ claims, it rests inaccurately upon an overstatement of the effect of Proposition 8 on both the fundamental constitutional right of privacy guaranteed by article I, section 1, and on the due process and equal protection guarantees of article I, section 7. As explained below, Proposition 8 does not abrogate any of these state constitutional rights, but instead carves out a narrow exception applicable only to access to the designation of the term “marriage,” but not to any other of “the core set of basic substantive legal rights and attributes traditionally associated with marriage . . .” (Marriage Cases, supra, 43 Cal.4th at p. 781), such as the right to establish an officially recognized and protected family relationship with the person of one’s choice and to raise children within that family.

In addition, no authority supports the Attorney General’s claim that a constitutional amendment adopted through the constitutionally prescribed procedure is invalid simply because the amendment affects a prior judicial interpretation of a right that the Constitution denominates “inalienable.” The natural-law jurisprudence reflected in passages from the few early judicial opinions relied upon by the Attorney General has been discredited for many years, and, in any event, no decision suggests that when a constitution has been explicitly amended to modify a constitutional right (including a right identified in the Constitution as “inalienable”), the amendment may be found unconstitutional on the ground that it conflicts with some implicit or extraconstitutional limitation that is to be framed and enforced by the judiciary. Although the amending provisions of a constitution can expressly place some subjects or portions of the constitution off-limits to the amending process — as already noted, some state constitutions contain just such explicit limits — the California Constitution contains no such restraints. This court would radically depart from the well-established limits of the judicial function were it to engraft such a restriction onto the Constitution in the absence of an explicit constitutional provision limiting the amendment power.

Accordingly, we conclude that each of the state constitutional challenges to Proposition 8 advanced by petitioners and the Attorney General lacks merit. Having been approved by a majority of the voters at the November 4, 2008 election, the initiative measure lawfully amends the California Constitution to include the new provision as article I, section 7.5.

In a sense, petitioners’ and the Attorney General’s complaint is that it is just too easy to amend the California Constitution through the initiative process.1 But it is not a proper function of this court to curtail that process; we are constitutionally bound to uphold it. If the process for amending the Constitution is to be restricted — perhaps in the manner it was explicitly limited in an earlier version of our state Constitution (see, post, at pp. 46-55), or as limited in the present-day constitutions of some of our sister states (see, post, at pp. 105-107) — this is an effort that the people themselves may undertake through the process of amending their Constitution in order to impose further limitations upon their own power of initiative.

On first reading California’s Supreme Court seems to say that a simple majority of the voters can take away an “inalienable right” so what is the value of including in a constitution, rights that government is supposed to protect whether enumerated or unenumerated?

Kentucky says in its Constitution:

Section 1
Rights of life, liberty, worship, pursuit of safety and happiness, free speech, acquiring and protecting property, peaceable assembly, redress of grievances, bearing arms.

All men are, by nature, free and equal, and have certain inherent and inalienable rights, among which may be reckoned:

First: The right of enjoying and defending their lives and liberties.

Second: The right of worshipping Almighty God according to the dictates of their consciences.

Third: The right of seeking and pursuing their safety and happiness.

Fourth: The right of freely communicating their thoughts and opinions.

Fifth: The right of acquiring and protecting property.

Sixth: The right of assembling together in a peaceable manner for their common good, and of applying to those invested with the power of government for redress of grievances or other proper purposes, by petition, address or remonstrance.

Seventh: The right to bear arms in defense of themselves and of the State, subject to the power of the General Assembly to enact laws to prevent persons from carrying concealed weapons.

And then says:

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.

CA’s Supreme Court seems to say that because CA does not have a statement like KY’s Section 26 that a simple majority of CA voters can take away any “inalienable right” supposedly protected by CA’s Constitution.
:shrug:

[X_Digger]

1. Damn sad, especially from a court. n/t

[Statistical]

2. It is more of a failure of the CA set of checks and balances.

There is no lower requirement to add vs modify the US Constitution.

Someday someone could repeal the 2nd even though it is an inalienable right. Tyrannical govts often do violate civil rights of their constituents.

The major advantage is that the framers of Federal Constitution was fit to make any change to Constitution very difficult and a 2 step process that often involves years (providing adequate time for discussion and no shoot from the hip responses).

1) Amendment requires:
vote by 2/3 vote in both houses
OR
call by 2/3 of states for Constitutional convention then a majority approval of 1 or more amendments (never used)

2) Ratification requires:
majority vote by 3/4th of state legislatures
majority vote by 3/4th of state constitutional convention (terms vary by state)

So while it is possible for any right even an inalienable right to be stripped away it would require both 2/3 vote in Congress at least (67 in the Senate? Very difficult). Not only that support for repealing the 2nd would have to be near universal with at least 51% support in 3/4th of the states (38 states). Even if the idea was very popular (say 70% popular vote) but not universally popular and had <50% approval in a mere 12 states it would fail.


The flaw here is that CA allowed a backdoor weak protection method to change their state Constitution. Obviously the framers of the CA constitution were not as fearful of the mob as the US constitution founding fathers were. CA voters should be concerned with the ease that their constitution can be changed and should ammend it to require a stronger set of requirements.
Something like:
2/3 majority of both houses & signing (not veto) by executive
OR
50% majority to begin Constitutional Convention then proper waiting period (180 days) to evaluate issue than a >3/4 vote by population.

Something like that. This isn't a failure of the courts but rather a warning that a weak Constitution is now Constitution. Many other democracies have failed in the past because of inadequate protections stemming from a weak Constitution.

Writing a Constitution is difficult because you are balancing about 5 different things.
You want legislature in control but you want them checked by Executive & Judiciary. You want the people represented but not for majority to rule. You want the Constitution flexible but you want to ensure it isn't changed at will.

US Constitution got it right. CA is appears did not.

[jody]

3. Thanks, looks like KY and other states understood the danger you discuss. n/t

[Statistical]

4. I am not a Constitutional lawyer but I did stay at a holiday inn select.

I don't think it is just section 26 that provides the protection but rather the amendment process.
Which in KY involves a 2/3 vote by legislature and 2/3 vote by general public.

If KY allowed the Constitution to be amended by a simple majority then a simple majority could amend the Constitution to repeal section 26 and then amend it again to make any change.

CA flaw goes beyond the lack of a "section 26" protection. The ease at which the Constitution of CA can be changed and the power of special interests in Prop system create a dangerous combination.

Compare this to the US Constitution.

Over 5000 amendments have been proposed by US Congress. 5000. Only 33 has been formally proposed (<1%) and of those only 27 ratified. The average time from proposal to ratification is 2.5 years. A mere 12 states or 33 senators can block the process. It is intentionally difficult.

CA Constitution provides no real protection of civil liberties. Citizens of CA are trusting both the legislature and their fellow citizens with their liberties back up by litle more than "faith" in their fellow man.

The framers of most states and the United States were much less optimistic and employed substantial safeguards.

[jody]

5. Understand but the 13 smallest states with 5% of the population can block a Constitutional amendment

In contrast, the smallest 26 states with 19% of the population and their 52 Senators can approve a Supreme Court that makes decisions which are just as effective in changing laws as amending our Constitution.

Interesting, 5% of the population can block Constitutional amendments and 19% of the population can effectively change the Constitution by approving Supreme Court justices.

:shrug: