The California Supreme Court Offers A Suggestion for Constitutional Convention
The California Supreme Court's decision today to uphold Prop 8 is more about the California constitution and the initiative process (the true winner in the case) than it is about same-sex marriage. In effect, by a 6-1 vote, the court makes plain that it would have loved to overturn Prop 8--but couldn't because of the constitution.
And in the following passage from today's decision, the court seems to offer a suggestion to advocates of a constitutional convention: that the state needs provisions limiting the ability of the people to change certain parts of the constitution by initiative. The political problem with this is, of course, that advocates of such a convention desperately want to avoid having issues like same-sex marriage brought into the debate over a convention.
Anyway, here's the relevant passage:
"The constitutions of a number of other states contain express provisions
precluding the use of the initiative power to amend portions or specified
provisions of those states' constitutions (see, e.g., Mass. Const., amend. art.
XLVIII, pt. II, § 2 ["No proposition inconsistent with any one of the following
rights of the individual, as at present declared in the declaration of rights, shall be
the subject of an initiative . . . petition: [listing a number of rights, including the
rights to just compensation, jury trial, and protection from unreasonable search,
and the freedoms of speech, assembly, and of the press]]; Miss. Const., art. 15,
§ 273, subd. (5) ["The initiative process shall not be used: [¶] (a) For the proposal, modification or repeal of any portion of the Bill of Rights of this Constitution"].) In contrast, the California Constitution contains no comparable limitation. In the absence of such an express restriction on the initiative power, and in light of past
California authorities, we conclude that the California Constitution cannot be
interpreted as restricting the scope of the people’s right to amend their
Constitution in the manner proposed by petitioners.