Wednesday, November 19, 2008

Prop. 8 hinges on who decides: judges or voters

11/19/08 SF Chronicle:

According to Ethan Leib, a constitutional law professor at UC Hastings, it is "very hard to argue that [Proposition 8, a] narrowly written constitutional amendment changes the fundamentals of our state government ... [Because California has a] "flexible and inviting (constitutional) amendment procedure ...the people, rather than the judges, get to say what the Constitution means."

Vikram Amar, a constitutional law professor at UC Davis, adds that if the California Supreme Court rules that Proposition 8 is a constitutional revision, such a ruling could "lead us down a slippery slope." If Proposition 8 is a constitutional revision because unpopular minorities require constitutional protection from majority rule, then the same argument could apply to criminal defendants.

Former California Supreme Court Justice Joseph Grodin said that "You shouldn't be able to take away those [fundamental] rights [of a minority] simply by putting another measure on the ballot and having a majority vote."

In 1978, voters passed Proposition 7, restoring the dealth penalty and declaring that the death penality is not cruel and unsual punishment. In People v. Frierson, 25 Cal. 3d 142 (1978), the California Supreme Court upheld Proposition 7, despite its 1972 ruling that the death penalty is cruel and unsual punishment. UC Hastings Law Professor Calvin Massey said, "I can't think of any more fundamental right than to not have my government put me to death. That was found to be an amendment, not a revision."

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