Daily Archives: June 17, 2005

Unconstitutional Constitutional Amendments?

NYT reports that MA Gov. Romney will support a proposed amendment to the Constitution banning gay marriage. MA Courts have ruled that gay marriage should be permitted.

The new amendment, drafted by a coalition of conservative groups led
by the Massachusetts Family Institute, would generate some unusual
consequences. It would not, for example, require that same-sex
marriages that have already taken place be dissolved or invalidated.

Kris Mineau, president of the Massachusetts Family Institute, said his
group had decided not to require that because "the homosexual marriages
that occurred happened because of a flawed decision" made by judges,
and "it’s unfair to penalize those people for a bad decision made by
the courts."

Asked if it would be confusing if some same-sex
couples were legally married, while others would be barred from getting
married, Mr. Mineau said, "It will be for a season, but eventually it
will be a thing of the past, a brief social experiment that happened
because of court activism."

Which brings me to my point – can a Constitutional amendment be… well, unconstitutional? One can see how an amendment banning same-sex marriages could be held to be in violation of the equal protection clause of that very same Constitution. It seems, therefore, that any such amendment that is in contradiction with an existing amendment would be invalidated.

I’m not a Conn. Law expert, so I do think I’m missing something. Any comments, clarifications, explainers would help.

Manufacturing reasonable suspicion

Blonde Justice writes about a proposed law [news report] in NY that would require special license plates for those convicted of drunk driving.

The license numbers or letters _ the specific code hasn’t been
determined _ would allow police to quickly identify motorists convicted
of driving while intoxicated. Police could then stop the cars without
further cause, said the bill’s sponsors, Republican senators Thomas
Libous of Binghamton and Nicholas Spano of Westchester.

So, a prior conviction is now probable cause, or at the very least, reasonable suspicion. This is vaguely analogous to the Megan’s law statutes which require registration (and of which, i’m sure you know, i’m not a fan) for either 10 years or lifetime. In the Megan’s law cases, arguments implicating the ex-post facto clause were raised and rejected.

The case here, I think, I stronger. When dealing with Megan’s law, the argument was that registration imposes a subsequent punishment – i.e. brandishing of an individual. With this current proposal, not only does it brandish an individual, but it also exposes him to continual harassment and perhaps future arrests. The invasiveness factor is higher because of the automobile. Because you know the cops are going to be tailing cars with these special license plates.

Honestly, I don’t think this bill would pass Constitutional muster. One cannot "create" reasonable suspicion, as this bill seems to do. As Blondie suggests, this is a slippery slope, which leads all the way back to the Scarlet Letter.