tag:blogger.com,1999:blog-6251675227852122352.post6784644781869754803..comments2024-01-05T06:18:18.086-05:00Comments on CommentaramaPolitics: How Amendments To State Constitutions Are ReviewedAndrewPricehttp://www.blogger.com/profile/11312364467936820986noreply@blogger.comBlogger8125tag:blogger.com,1999:blog-6251675227852122352.post-29919157467580108262009-06-01T15:42:48.144-04:002009-06-01T15:42:48.144-04:00Andrew: Since you brought up both Prop 8 and a hy...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. <br><br>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 <i>amendments</i> to the state constitution was exactly right.<br><br>That issue eliminated, I still think what I predicted will happen in the gay marriage suit is the most likely result.LawHawkSFhttp://www.blogger.com/profile/17800255923675295515noreply@blogger.comtag:blogger.com,1999:blog-6251675227852122352.post-11798576757746830822009-06-01T15:08:27.631-04:002009-06-01T15:08:27.631-04:00Patti, send me your adres deer madame and your ban...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.AndrewPricehttp://www.blogger.com/profile/11312364467936820986noreply@blogger.comtag:blogger.com,1999:blog-6251675227852122352.post-60760987134055874212009-06-01T15:06:06.784-04:002009-06-01T15:06:06.784-04:00ok, what i meant to say was that all this entry wa...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...pattihttp://www.notawonk.comnoreply@blogger.comtag:blogger.com,1999:blog-6251675227852122352.post-54163559532363650282009-06-01T14:37:05.893-04:002009-06-01T14:37:05.893-04:00Patti, ask and yee shall receive. . . I've a...Patti, ask and yee shall receive. . . I've added the toy.<br><br>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.<br><br>Statutory interpretation and review raised a whole host of other issues, that really need a separate article.AndrewPricehttp://www.blogger.com/profile/11312364467936820986noreply@blogger.comtag:blogger.com,1999:blog-6251675227852122352.post-48197750239270287372009-06-01T13:52:54.950-04:002009-06-01T13:52:54.950-04:00Andrew: Well put, and helpful to those who do not...Andrew: Well put, and helpful to those who do not understand the federal process of reviewing a state supreme court decision.<br><br>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. <br><br>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.<br><br>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?"<br><br>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.<br><br>If I am correct, that leaves only the 14th Amendment <i>federal</i> "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. <br><br>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.LawHawkSFhttp://www.blogger.com/profile/17800255923675295515noreply@blogger.comtag:blogger.com,1999:blog-6251675227852122352.post-19456512841670305322009-06-01T13:48:48.155-04:002009-06-01T13:48:48.155-04:00i was wondering how it was possible that prop 8 we...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.pattihttp://www.notawonk.comnoreply@blogger.comtag:blogger.com,1999:blog-6251675227852122352.post-26894427497032903042009-06-01T13:43:35.989-04:002009-06-01T13:43:35.989-04:00Thanks Dan.I'm not sure if they still teach ci...Thanks Dan.<br><br>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!<br><br>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.<br><br>I've met many attorneys who have little or no grasp of the Constitution or how it works -- public defenders included.AndrewPricehttp://www.blogger.com/profile/11312364467936820986noreply@blogger.comtag:blogger.com,1999:blog-6251675227852122352.post-2344039820260942202009-06-01T13:20:20.320-04:002009-06-01T13:20:20.320-04:00Good article Andrew. I was fortunate enough to le...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.StlDanhttp://www.blogger.com/profile/14962630369585325054noreply@blogger.com