Monday, June 1, 2009

How Amendments To State Constitutions Are Reviewed

With Proposition 8’s opponents going to Federal District Court to challenge the constitutionality of Proposition 8, many people have asked how a change to a state constitution can be found unconstitutional. Since it is now part of that constitution, it must be valid right? Here’s the process. . .

First, let’s distinguish between “laws” and amendments to constitutions. They are two different things. Laws must conform to the requirements of the constitution, whereas amendments can change the constitution itself.

Next, let us also distinguish between amendments to state constitutions and amendments to The Constitution. Today we are dealing only with amendments to state constitutions.

When an amendment to a state constitution is passed, the court will look first at the process to determined if its proponents followed all of the right procedures required by state law -- correct number of signatures, voting certifications, etc. If not, the court will strike it down on procedural grounds.

Although this sounds simple, it actually can get fairly tricky because some states require (for example) that a voter-approved amendment address "only one issue." If the amendment attempts to address multiple issues, it will be struck down on procedural grounds. But what really constitutes "one issue" is often just a matter of semantics. If you buy a Happy Meal, are you buying one item or are you buying a burger and fries and a drink and a cool toy?

Procedural challenges are usually resolved in the state courts. BUT, if the state supreme court ignores its own law and approves the amendment even though the proponents did not comply with the procedures, a federal court can intervene on the basis that the state court violated established due process. This is rare, but it can happen.

If you get past the procedural hurdles, then the state court must figure out how to interpret the new amendment. This is where a lot of amendments lose their teeth. If the new amendment is vague or poorly written, it will get gutted.

If it conflicts with an existing constitutional provision, this is where the first "constitutionality" question comes up. A state court cannot conclude that an amendment is unconstitutional merely because it conflicts with an existing provision. Instead, the court will try to find a way to harmonize the two provisions, i.e. find an interpretation of the new amendment that does not conflict with the existing constitutional provision. This makes for strange decisions.

Consider this example: Assume the California Constitution has always provided that you have the right to fish on Sunday. A new amendment says, you can't fish on weekends. The court might conclude that the voters "did not mean to include Sundays when they used the word ‘weekend’." Or the court might define “fishing” more narrowly under the new amendment.

If the court can’t find a way to harmonize the conflict, it usually is left with no choice but to conclude that the new amendment was intended to replace the older amendment.

However, the state court also will look to the United States Constitution when it examines the new amendment. The Constitution sits above all state constitutions. When it grants a right, the state may add to that right, but may never take it away. For example, if the Constitution says that you have a right to fish on Sundays, state constitutions may add to that by giving you a right to fish on Mondays, but they cannot take away your right to fish on Sundays.

If the state supreme court concludes that the amendment violates the United States Constitution, it will strike that amendment down as unconstitutional.

Once a state supreme court has ruled, that decision can be challenged in a federal court. At that point, you can challenge the procedural issues, as discussed above, or you can challenge the amendment as being unconstitutional under the United States Constitution. You can make this challenge even if the state supreme court already ruled on the constitutionality under the United States Constitution, because federal courts have superior jurisdiction in matters related to the United States Constitution -- thus, their opinion trumps the state court's opinion.

However, federal courts have inferior jurisdiction in interpreting state laws. Thus, they cannot change the interpretation of the amendment given by the state supreme court, they can only review the new provision (as interpreted by the state) and determine whether or not it would violate the federal Constitution. (Although, making this a little more complex, they also can attempt to harmonize it with the United States Constitution, just as the state court harmonized it with the state constitution.)

Thus, with Proposition 8 now in federal court, the only issues the federal courts can decide are (1) whether the California Supreme Court ignored its own law and allowed the amendment despite procedural defects, and/or (2) whether the new law violates some federal right. The federal courts cannot delve into the California constitution and apply their own interpretation.


StlDan said...

Good article Andrew. I was fortunate enough to learn the Federal and Mo. Constitution in Middle School (Jr. High for us old people) and of course as part of my occupational training. They no longer teach it as a separate course in school, here. And from what I hear about the Academies today, it is no longer the base of training but, merely an after thought. I never feared Defense Attorneys on the stand because I had truth and the knowledge of the Constitution behind me. I was often used by the Prosecuting Attorney (D.A.) in other jurisdictions as an expert witness on matters involving Fourth Amendment cases, usually just to hasten plea bargains. I actually relished the idea of going head to head with a Public Defender, usually just out of school.

AndrewPrice said...

Thanks Dan.

I'm not sure if they still teach civics or not in K-12. And if they do, I'm not sure I want to know exactly what they call civics. Go save the planets kids!

The Constitution is still taught in lawschool, but not with the clarity you would expect. They break it up over several courses (Con Law, Property, Crim law/Crim Procedure), but they often only require Con Law.

I've met many attorneys who have little or no grasp of the Constitution or how it works -- public defenders included.

patti said...

i was wondering how it was possible that prop 8 went to the federal court. the only thing missing from this entry is the cool toy.

Unknown said...

Andrew: Well put, and helpful to those who do not understand the federal process of reviewing a state supreme court decision.

Allow me to expand slightly on your discussion. It is important to distinguish "rights" granted by statute ("law") and those commonly called "basic rights" granted by the Constitution and therefore superior to statutory rights. Thus, the "right to fish" on certain days is a statutory right, subject to the whim of the legislature and/or the people. The right to speak publicly about your opinion of the restrictions on fishing is a basic right, which no state statute or state constitution can usurp.

California's Supreme Court would thus have every constitutional freedom to rule on what the state constitution means when addressing the conflict in the law on which days are permitted fishing days ("adequate independent state grounds")but has no right to suppress anybody's opinion of the statute or the court's ruling on it.

That is where Proposition 8 opponents who have headed to federal court are sailing into dangerous waters. Since the California Supreme Court has ruled on California marriage law (adequate independent state grounds), the issue then becomes "is marriage itself a basic constitutional right which deserves the protection and oversight of the federal courts?"

However strange the California decision may seem, at least for those 18,000 or so gay couples who were legally married during the "gap," I consider it highly unlikely that the United States Supreme Court will find that the state court violated any of its own procedural or substantive state due process provisions.

If I am correct, that leaves only the 14th Amendment federal "equal protection of the laws" provision to argue. And that hinges on whether the U. S. Supreme Court finds that marriage itself is a basic Constitutional right which is subject to federal supremacy. It has never found anything like that to be true in the past, and has always left decisions concerning marriage to the states.

Here's my guess on the eventual outcome. Regardless of what decision the federal trial court makes, it will be appealed to the Ninth Circuit Court of Appeals. The most overruled Court of Appeals will find that California has indeed erred in restricting a basic federal constitutional right and uphold gay marriage. The final appeal to the Supreme Court will result in a reversal of the Ninth Circuit, finding the California Supreme Court decision to be properly determined on adequate independent state grounds and upholding the traditional finding that marriage is a matter for the states which is not a basic federal constitutional right.

AndrewPrice said...

Patti, ask and yee shall receive. . . I've added the toy.

Lawhawk, you make some good points but let me clarify that I am not addressing the issue of how rights granted by statute are reviewed -- only how amendments to a state constitution are reviewed.

Statutory interpretation and review raised a whole host of other issues, that really need a separate article.

patti said...

ok, what i meant to say was that all this entry was missing was a hugola check, in my name of course, that would allow me the lifestyle i should have been born to...

AndrewPrice said...

Patti, send me your adres deer madame and your bank count number and I will sned you kind check. Also your winning from Spanish lottery.

Unknown said...

Andrew: Since you brought up both Prop 8 and a hypothetical fishing law, I assumed that you were suggesting that even the people of the state of California would never be so stupid as to put "days on which fishing was allowed" into the state constitution. After re-reading your post, I see that I misunderstood that point.

And upon sober reflection, I realize that even though they have not recently amended the state constitution to address "fishing days," I wouldn't eliminate the possibility. My apologies. Your explanation re amendments to the state constitution was exactly right.

That issue eliminated, I still think what I predicted will happen in the gay marriage suit is the most likely result.

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