|
An active constitutional amendment, once ratified, cannot be declared unconstitutional; it is, after all, in the constitution. The two points here are "active" and "ratified."
The California constitution makes a distinction between amending the constitution and revising it. Amendments are small changes, alterations in details; those can be initiated by a petition of the people. Revisions are large changes and alterations in core principles; those can only be initiated by legislative act.
The initiative that became Prop 8 was already gathering signatures when the state Supreme Court issued its ruling. At that time, the initiative was described as prohibiting same sex couples from getting married. Once the right to marry had been established, the courts forced a name change; the initiative was now described as eliminating an existing right. At the same time, the question was asked both of the state Attorney General and the state Supreme Court whether this had become a revision of an existing right found in the state Constitution, or was still an amendment. Both the AG and the Court said that the question would have no legal standing until and unless it was passed, and so they could not issue any opinion.
Now that Prop 8 appears to have passed, several groups have filed suits to force that very question. Because the Court found a basis in the state constitution allowing same sex couples to be married, precedent (and yes, there is precedent for this) holds that the measure was a revision and not an amendment. Because revisions require an act of the state Assembly and the signature of the governor before they can go before the people, Prop 8 will likely be found invalid, thus not ratified, thus effectively overturned because it was never a part of the constitution in the first place.
Now, a provision can be ratified and put in the constitution, but not be active. The fundamental job of the courts is to be the arbitrator of the law. Where laws conflict, the courts must resolve the conflict. A constitution, by definition, the body of laws from which all other laws derive and to which all other laws are subservient. In resolving a conflict between two parts of a constitution, one part can be held as "overruled" by another part, making it inactive.
Example 1: The 12th Amendment. Article II, Section 1, paragraph 3 describes how the President and Vice President are selected. Amendment 12 does the same thing. Both are in the United States Constitution, so both are constitutional by definition. There is nothing in Amendment 12 which alters or removes the existing text of the Constitution, so strictly speaking, both are in force. However, the US Supreme Court has held that in all conflicts, amendments override the text of the Constitution and newer amendments override the text of older amendments. In short, Article II, Section 1, paragraph 3 is constitutional but not active.
Example 2, hypothetical: The California Constitution guarantees certain rights to all. It was on the basis of these guarantees that the state Supreme Court ruled that same sex couples have a right to marry. Amending the constitution to revoke those guarantees for same-sex couples violates other guarantees in the state constitution, guarantees stating that those other rights are, in fact, guaranteed. The Court could rule that the guarantee of guaranteed rights was not amended, and therefore overrides the part added by Proposition 8. In short, Prop 8 would be constitutional but not active.
|
Printer-friendly format
Email this thread to a friend
Bookmark this thread
(1000+ posts)
Send PM |
Profile |
Ignore
