Cali supreme court overturning Prop 8?

[Amazon 7]

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Like I said above, the results of the vote for Prop 8 may be thought of as unfair for some, but to have your right to fair voting power removed by the supreme court is unfair for all.

I would say they are there to ensure that the rights of all people are upheld... rather than allowing for ANY group to dictate what is allowable based on THEIR morality. When the morality issue becomes the issue... then there needs to be a reckoning on WHO defines the morality... the churches and those who believe they have to right to intrude in others lives based on goat herder morality from 3000 years ago. That my friend is bordering on a very slippery slope of sliding into a theocracy.. with restrictions on far more things than allowing two people who love one another have the same rights as you and the person you have chosen to love. Are you willing to let the church lady next door to dictate what you do in YOUR home with your lover?

[livendive 8]

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It has EVERYTHING to do with it. You only need to look at WHO was supporting and pumping in HUGE amounts of money... care to guess who that was????

No I don't care to guess, and I don't care who it was. Again, it has nothing to do with the supreme court considering reversing an amendment that was legally put into place by a fair and square vote by California voters.

As I'm understanding the debate, the part I bolded has not been established.

Blues,
Dave

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[kelpdiver 2]

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No I don't care to guess, and I don't care who it was. Again, it has nothing to do with the supreme court considering reversing an amendment that was legally put into place by a fair and square vote by California voters.

Who determines the legality of how it was done? Right, the court.

[lawrocket 3]

It looks like our disagreement here is between whether this is a "revision."

Definiing this as a "revision" would have meant that Prop. 13 would have been overturned.

The "Victim's Bill of Rights" (Ironically, 1982's Victims' Bill of Rights - which was "amended" in 2008's Prop 9) actually repealed a Constitutional provision and replaced it. This was called an "amendment."

A "revision" has been found when the fundamental structure of government has been altered. In a sense, changing the operating instructions. For example, a provision that subordinates the role of the judiciary would be a "revision" as seen in the Raven case. Term limits stripped the rights of people to run for public office. The court in Eu found that this is an "amendment" because the operation of the government remained the same.

So, the difference between an "amendment" and a "revision" - in my interpretation - is the difference between "substance" and "procedure." Changing the sound system in a car. That's an "amendment." Changing from an automatic to a standard transmisson? That's a "revision."

If the people therefore decided by initiative to eliminate the intiaitve process, it would subordinate the rights of the people, and would be a "revision." The operating instructions have changed.

Look at the US COnstitution as an example. Was the 13th Amendment a "revision" to the Constitution? It actually eliminated a property right that was in the Constitution.

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[billvon 2,478]

>Changing the sound system in a car. That's an "amendment." Changing
> from an automatic to a standard transmisson? That's a "revision."

OK. So what would removing the transmission and not replacing it be called?

>Look at the US COnstitution as an example. Was the 13th Amendment a
>"revision" to the Constitution? It actually eliminated a property right that
>was in the Constitution.

Nope, it was an amendment - because the US Constitution does not allow for revisions, only amendments. California's constitution, however, does make a distinction between them.

[lawrocket 3]

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OK. So what would removing the transmission and not replacing it be called?

A "revision." It fundamentally alters the structure of the government.

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Nope, it was an amendment - because the US Constitution does not allow for revisions, only amendments. California's constitution, however, does make a distinction between them.

Did you read the Raven case? Here's what happened. Proposition 115 was passed by initiative in 1990. Part of what it did was that it basically took away additional rights granted to criminal defendants in California that were given in the Federal Constitution.


As stated in "Amador, and confirmed in Brosnahan, our revision/amendment analysis has a dual aspect, requiring us to examine both the quantitative and qualitative effects of the measure on our constitutional scheme. Substantial changes in either respect could amount to a revision." (Raven v. Deukmejian, (1992) 52 Cal.3d 336, 350.)

Now, some of the changes "involving such isolated matters as postindictment preliminary hearings, joinder of cases, use of hearsay, reciprocal discovery, and the People's right to due process and a speedy, public trial, cannot be deemed matters which standing alone, or in the aggregate, substantially change our preexisting governmental framework.) " (Ibid.)

Now, what Prop 115 did was strip all rights not guaranteed by the Federal Constitution. Who determines what the rights are? Federal courts. The effect of Prop 115 was to delegate "all judicial interpretive power respecting those rights in or to the federal courts." (Id at 351.)

In 1974, the Constitution was revised to provide California courts the authority to independently interpret the Californai Constitution. ""Rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution." As far as criminal cases were concerned, there WAS no California Constitution. Judges had to defer to federal courts.

Thus, determining the rights of defendants was no longer a job of the courts. It took a job and gave it to someone else.

This fundamentally changes the operation of the judiciary. The interpreatation of the Constitution is "the very essence of judicial power." Thus, “such far reaching changes in the nature of our basic governmental plan as to amount to a revision ‘the nature of our basic governmental plan...’” (Id. at 354-355).

That's Raven. A "revision" changes the operation of the government.


Aside - There are certain legal "terms of art." Among them is the policy of "strict construction" versus "liberal constructuction." Some statutes are narrow and procedural and are strictly contrued for compliance. On the other hand, other things are "liberally construed" - that is, any question or doubt is reserved in favor of it.

The initiative process is a power reserved by the people, not one granted to them. (Associated Home Builders etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582, 591.) It is the duty of courts to jealously guard this right, which is one of the most precious rights of our democratic process. (Ibid.) Thus, courts must "apply a liberal construction to this power wherever it is challenged in order that the right be not improperly annulled. If doubts can reasonably be resolved in favor of the use of this reserve power, courts will preserve it."(Ibid.)

This means that under established doctrine, any question as to whether it is a revision or an amendment must be construed to be an amendment.

This does not result in the loss of a republican form of government. That was already decided in the Prop. 13 case. It changes NOTHING with relation to the operation of the government.

I think the argument that it is a "revision" is specious - especially considering the Raven decision.

Edited to add:

I really think you all should read the underlying cases. Most of you are getting your thoughts from news releases, press releases, etc. These either report or put a spin on the briefs submitted.

The briefs submitted put their own spin on the cases they cite.

The underlying cases - Raven, Amador Valley, Brosnahan, Eu, Associated Homebuilders, etc.

They provide you with the real gist of what's going on outside of the spin. And then it's time to simply put emotions aside and examine them rationally.

My wife is hotter than your wife.

[Ron 7]

While I think gays have the same rights as hetero's...

The question is really: When does what, really equal law?

On the one side you have a democracy (ok, a representive republic), and on the other judicial.

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I would say they are there to ensure that the rights of all people are upheld... rather than allowing for ANY group to dictate what is allowable based on THEIR morality.

Or *opinion*. Even if take religion out of it, it still becomes who has the correct opinion.

In this case, it could easily be said that the justices are a group that is dictating based on their opinion. While you and even I agree, the question is not what we think, but at what point does what side (voters/justices) win?

And then we have to be willing to accept the outcome of that process even when we disagree with the final outcome.

I think it would be foolish to automatically give power to any one part of those two sides. Justices have made mistakes before... NFA 1934 comes to mind.

"No free man shall ever be debarred the use of arms." -- Thomas Jefferson, Thomas Jefferson Papers, 334

[Amazon 7]

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While I think gays have the same rights as hetero's...

The question is really: When does what, really equal law?

On the one side you have a democracy (ok, a representive republic), and on the other judicial.

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I would say they are there to ensure that the rights of all people are upheld... rather than allowing for ANY group to dictate what is allowable based on THEIR morality.

Or *opinion*. Even if take religion out of it, it still becomes who has the correct opinion.

In this case, it could easily be said that the justices are a group that is dictating based on their opinion. While you and even I agree, the question is not what we think, but at what point does what side (voters/justices) win?

And then we have to be willing to accept the outcome of that process even when we disagree with the final outcome.

I think it would be foolish to automatically give power to any one part of those two sides. Justices have made mistakes before... NFA 1934 comes to mind.

I tend to come down on the side of not limiting other peoples civil rights based on biblical predjudice. I think the founding fathers had some very similar thoughts.

[Ron 7]

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I tend to come down on the side of not limiting other peoples civil rights based on biblical predjudice. I think the founding fathers had some very similar thoughts.

And I do not disagree. But at what point do you think that the populace gets a say? And how do they give it if an election was not enough (twice IIRC)?

Understand, I agree with you... But I am interested in your answer as to when, if ever, a vote could trump a ruling.

"No free man shall ever be debarred the use of arms." -- Thomas Jefferson, Thomas Jefferson Papers, 334

[lawrocket 3]

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I tend to come down on the side of not limiting other peoples civil rights based on biblical predjudice.

Do you therefore have no problem with limiting civil rights for reasons other than biblical prejudice?

I actually tend to come down on the side of not limiting other peoples' civil rights based upon anything[\i] other than such matters as limiting their freedoms for their commission of crimes.

Then again, that's just me.

My wife is hotter than your wife.

[Amazon 7]

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I tend to come down on the side of not limiting other peoples civil rights based on biblical predjudice.

Do you therefore have no problem with limiting civil rights for reasons other than biblical prejudice?

I actually tend to come down on the side of not limiting other peoples' civil rights based upon anything other than such matters as limiting their freedoms for their commission of crimes.

Then again, that's just me.

Biblical was specific since that is the current issue.. any other rights of man... are implied.

I am sure there are those who support Proposition 8 who would happily recriminalize some of the idiocy that was codified in so many laws in the past.. for sodomy and other "morals" crimes.

Then again... I would opt for ACTUAL libertarian principles... but.... that's just me.

[SimonBones 1]

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I would say they are there to ensure that the rights of all people are upheld... rather than allowing for ANY group to dictate what is allowable based on THEIR morality.

I think that's the ACLU you're thinking of and not the supreme court. Their job is to interpret the constitution.

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[Amazon 7]

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I would say they are there to ensure that the rights of all people are upheld... rather than allowing for ANY group to dictate what is allowable based on THEIR morality.

I think that's the ACLU you're thinking of and not the supreme court. Their job is to interpret the constitution.

No their basic charter is to interpret the constitution which is the fundamental principles according to which a nation is governed. To me that is the DEFINITION of what rights we as citizens have. To remove rights from a group of citizens based on one groups morals, especially when that group is doing no harm to its fellow citizens... is morally reprehensible.

[kelpdiver 2]

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Understand, I agree with you... But I am interested in your answer as to when, if ever, a vote could trump a ruling.

Votes often trump rulings - on nearly any matter than doesn't cover civil rights, the majority decision rules. The underlying law is changed.

So the question here really is, can the majority (or supermajority) vote to take away minority rights?

[SimonBones 1]

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So the question here really is, can the majority (or supermajority) vote to take away minority rights?

Yes. Let's say the American population is rounded at 300,000,000 people. If 299,999,999 of them all vote 'yes' to execute Mr. XYZ and remove his basic right to live for no reason, they can... whether you like it or not. Nobody can (or will in this case) stop them from doing it legally. I think that answer is simple. The more complicated answer I've seen here to your question is what is the minimum number of people needed to call a majority. Where one draws the line.

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[lawrocket 3]

this creates an interesying question.

Let us imagine that the People of the State of California wish to amend to Constitution to make the age of majority 16.

Would those of you who are against a majority vote taking away a right also believe that the creation or expansion of a right can be approved by majority vote? Does ir take more to take away a right than give a right?

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[billvon 2,478]

>Does ir take more to take away a right than give a right?

I think it should. We should not surrender any rights easily, nor should government be structured so that it is easy to do so.

[Ron 7]

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We should not surrender any rights easily, nor should government be structured so that it is easy to do so.

If you only felt that way about the 2nd.

"No free man shall ever be debarred the use of arms." -- Thomas Jefferson, Thomas Jefferson Papers, 334

[lawrocket 3]

See? Billvon's not always wrong. [Laugh]

My wife is hotter than your wife.

[billvon 2,478]

>If you only felt that way about the 2nd.

I do.

[jcd11235 0]

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Cal. Cosnt. Article II, Section 1:

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SECTION 1. All political power is inherent in the people. Government is instituted for their protection, security, and benefit, and they have the right to alter or reform it when the public good may require.

Seems the Constitution guarantees the rights of the people to be assinine.

Interesting. What happens when we read that section with the emphasis placed differently?

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SECTION 1. All political power is inherent in the people. Government is instituted for their protection, security, and benefit, and they have the right to alter or reform it when the public good may require.

Could you please explain how the public good may have required passage of Prop 8? Thanks.

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[lawrocket 3]

I cannot explain it from my own subjective beliefs. I think it is abhorrent.

Considering the contempt that I have for myself, I figure I don't have the right to say what is good for anybody else but me. Likewise, I don't think anybody else should be engaged in the business of telling me what is "good" for me.

The "public good" is best decided by the "people." or by their elected representatives. On this issue, I was apparently off, sincce it didn't work for me.

Here is how I can maintain consistency. Substantively, there is plenty of room for argument. There is a procedure for this and the procedure was followed.

I'll put it this way - do you want Scalia being in charge fo telling you what is good for you and what isn't? I don't - any more than I want Jerry Brown telling me what is good for me.

I have ZERO issue with the petitioners in this case or with their counsel doing the best they can - even if I think their argument isn't very good. They are going down swinging. I have ZERO issue with the intervenors in this case. They are trying to ensure the survival of something that I think sucks. But they are doing it appropriately and, I think, have HIGHLY solid legal arguments based upon well-established principles.

My issue is with the Attorney General. I think he's got a lousy argument and he is actively working against his clients. He not only isn't doing his job - he is actively working CONTRARY to his job. He's using it as a jump start for his gubernatorial campaign.

This is why I'd never be a good politican. I don't believe that I have the authority to tell people what is good for them. What's good for me doesn't work for others. What works for others doesn't work for me. "Public good" can therefore only be defined by the public.

p.s. - a fairly large umber of laws that I actively work to enforce are repugnant to me. I know I'm not in the position to decide whether they are "good" or not, nor will I tell a judge, "This sucks. You should ignore it."

My wife is hotter than your wife.

[lawrocket 3]

Oral arguments scheduled for today before the Cal Supreme Court.

Then a decision expected within 90 days.

My wife is hotter than your wife.

[SimonBones 1]

If they overturn prop 8, they government will have overturned the voting power of the majority of the citizens.

If they do not overrturn prop 8, "civil rights" people will freak out as their options pretty much run dry.

Do you think there will be riots?

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[quade 3]

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Oral arguments scheduled for today before the Cal Supreme Court.

When are lawyers going to change Oral to Aural?

I mean seriously?

quade -
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