California Proposition 8

So IANAL, but I am curious about the legal foundations of such a change. Apparently the entire proposed change is this:

Now, I realize how a constitutional amendment is a constitutional amendment and little can be done about it other than another constitutional amendment, but I am wondering how the very act of passing this constitutional amendment was constitutional based on section 9:

Now, this is probably not an ex post facto law, but is this not a law impairing the obligation of contracts? Wouldn’t proposition 8 have to have a provision about previously established marriage contracts to be a passable amendment under section 9? Or am I missing something that prevents section 9 from applying to initiatives amending the constitution?

Best regards,


You put your finger on it there.

When the 13th Amendment to the U.S. Constitution was enacted, it voided contracts of sale and ownership and indenture for millions of slaves/indentured servants.

No constitutional problem there, even though the U.S. Constitution similarly contains a “no impairment of contracts” clause.

New language > old language

That’s it. When it’s all part of the same law, then it has to be read “in pari materia” – together, harmonizing and giving full effect to each, if possible, and where it’s not, the specific overrides the general and the new overrides the old.

I believe the US Consitution says no state shall pass a law impairing contracts (which might also apply here, but that’s a separate question), but it levies no such power over congress. The California constitution simply states no law may be passed – without localizing it to municipalities, initiative measures, assembly, etc. It seems to me a constitutional amendment is a law – and while the text of it can alter the constitution and “new language > old language”, the act of passage of said amendment has to be in accordance with existing constitutional requirements for passing laws.

For example, you could pass an amendment removing Section 18 and therefore preventing further amendments, but that amendment has to be passed according to the rules outlined in the existing, unamended constitution

Another example would be an amendment changing the requirement of majority vote to 2/3rds vote to pass a constitutional amendment. It itself has to be voted in by a simple majority because its text does not effect its passage.

EDIT: To be clear I am not questioning the amendment itself – but rather the legality of its passage.

Is an amendment a law? I don’t think so.

It’s not a statute, to be sure. Neither is the budget, an executive order, or a majority opinion of the court.

The thing is, there’s a line between a law, in everyday usage, and the law, in lawyer’s jargon.

The law means the entire corpus of constitutions, amendments, statutes, treaties, agreements, compacts, executive orders, rules, regulations, and case law decisions that together make up what courts can validly rule with reference to. You’ll note that Article V of the U.S. Constitution defines it, and laws and treaties made in conformity with it, to be the supreme law of the land.

So yes, it’s a “law.” It governs court decisions like a law, walks like a law, quacks like a law… it’s a law. It’s just not a statute, the bunch of single-purpose enactments passed under a constitution by a legislature that is what most people mean when they say Congress or the state legislature passed a law.

I was goin to answer that a little different, Polycarp:

The Constitution (and it’s amendments) aren’t laws themselves, however laws derive their legitimacy from the powers granted to the government legislative bodies by the Constitution(s), and those various governing bodies may not pass laws that violate their Constitution(s).

For example, a Constitution may grant the State Legislature the ability (power) to collect taxes for the purposes of funding it’s activities. The Consitution may also restrict that bodies ability to collect taxes in a discriminatory way. For example, the legislature may not pass a tax law that collects a sales tax on candles (which is a legal activity Constitutionally speaking), but only from those purchasers who are Jewish (which wouldn’t be).

The purpose of the state and Federal Constitutions is to provide the authority to the various governing entities to do what they do, while laws define the detailed “play book” with which the government will operate under to do so.

Was that explaination wrong?

maybe this is simply an “it is what it is” situation, but why does a state constitutional amendment only require simple majority?

Because apparently when they were coming up with the rules, they wanted it relatively easy to change. (I believe that was just about what my PoliSci prof said a couple of semesters ago…)