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.