a public defender

A state constitutional amendment can violate the federal constitution as the supremacy clause makes the US Constitution the supreme law of the land. I suspect there will be a federal attack on the Mass. amendment.

Right, that’s what occurred to me - so why does it not occur to legislators? Isn’t this the first thing that should jump out at them? I presume they have counsel assisting them in the drafting of these amendments.

Gideon, I don’t want to be the one to break it to you, but many legislatures have drafted constitutional amendments that they know are probably unconstitutional. It makes great political sense: 1) no real effect upon the daily lives of anyone; and 2) can blame the courts and lawyers.

Anyway, Romer v. Evans was a good example of a state constitutional amendment being held to be unconstitutional. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=U10179

S.cotus: thanks for the pointer. I realize that my question may have seemed a little naive, but really it was more surprise than anything.

You’re right, though. The political ramifications can only be good. It serves to strengthen the legislators base and placing the blame on “activist, liberal lawyers and judges”.

In a way I am naive, I guess, in that I don’t want to believe that such announcements by the governor of a state are nothing but political ploys. Makes me lose respect for a position of authority and integrity such as that.

As a legal intern in the public defender office of Sonoma County, CA (north of San Francisco) I have witnessed a number of medical marijuana charges get dropped by the DA because of state law, which directly challenges a federal law concerning marijuana’s status as a controlled substance. Although this is a positive move on the state’s part, as opposed to banning marriage between homosexual men and women, the conflict between state and federal law is a reality both the state and federal gov. will live with. Conflict between state courts and the governor is another issue, but one with a good and bad end. Just as the supreme court of the United States should have the right to legally outlaw any action taken by the President –think Schiavo– the President should have no power to make an executive order challenging the supreme court. Obvious stuff, but helpful to state. If the amendment passed, which it won’t, I suspect that after one lawsuit made it to the supreme court of Mass., that no contest would remain and the amendment would be null. Long live a wise judiciary!

Of course the citizens of a state can amend the constitution to reject a court decision. Otherwise, the courts would be greater than the constitution. Now whether the FEDERAL courts would find such an amendment constitutional under the US constitution is another question. But clearly the citizens of the state can respond to a decision which, like this one, usurped the popular will by specifically amending their constitution to clarify that there is no “right” to homosexual “marriage” in this state.

As to the federal courts, I am not aware that any have ruled that the states cannot restrict marriage to the traditional definition. Many states have begun the democratic process of clarifying their definition of marriage. I suspect if the federal courts tried to upset this effort, a federal constitutional amendment would be forthcoming, or at least a act of Congress divesting the federal courts of jurisdiction to consider any such attacks on state definitions of marriage.

Of course the citizens of a state can amend the constitution to reject a court decision. Otherwise, the courts would be greater than the constitution. Now whether the FEDERAL courts would find such an amendment constitutional under the US constitution is another question. But clearly the citizens of the state can respond to a decision which, like this one, usurped the popular will by specifically amending their constitution to clarify that there is no “right” to homosexual “marriage” in this state.

As to the federal courts, I am not aware that any have ruled that the states cannot restrict marriage to the traditional definition. Many states have begun the democratic process of clarifying their definition of marriage. I suspect if the federal courts tried to upset this effort, a federal constitutional amendment would be forthcoming, or at least a act of Congress divesting the federal courts of jurisdiction to consider any such attacks on state definitions of marriage.

Whoops, sorry for the double post.

I think you’re absolutely correct: There are two issues here - the State Constitution and the Federal Constitution. Taking the state constitution only, the voters can obviously amend the constitution.

In the instance of a new amendment that would conflict with an already existing amendment, there would necessarily have to be either an explicit provision in the new amendment that would override the older one, or an amendment of the older one itself.

So, if there is an amendment that raises equal protection problems, the new amendment would have to state something to the effect of “notwithstanding any other Constitutional provision” - thereby diluting the EP clause… or an amendment to the EP itself.

This is what i’m not sure would be Constitutional - only because you’re not superceding an amendment (as in prohibition), but restricting one (and this would be in violation of itself).

So I’m not so sure it’s that cut and dry. Then we have the problem of the Federal Constitution providing the base-line for the rights afforded individuals by the state’s and would such an amendment to a state constitution be in violation of the Federal Constitution’s EP clause and what would be the constitutionality of any amendmed to the Fed. Constitution or the EP clause thereof, tailored to one specific issue.

Tom,

What is the difference between a federal court applying the US constitution to invalidate a state constitutional provision and a state court doing same ? Since both courts are required to enforce the US Constitution, it is pretty much a procedural or strategic decision as to which court has the honors of getting the first crack at something unconstitutional. Whatever the case, the US Supreme Court has the final say.

Currently, in some states such as Virginia, it is a serious crime for a woman to perform oral sex on a man. I wonder where the public outcry would be if a Virginia state court dismissed the indictment against one of these lawbreakers who, like, terrorists, have no respect for our laws.

Gideon, in some states the “voters” have no direct power to amend the state constitution, they must do so though the legislature. This is probably a good idea as most voters don’t have the high an attention span and few are lawyers. I tried talking to a few of them a couple of years back and it was a waste of time.

Whether a specific state amendment violates the US Constitution or not is obviously a matter of interpretation and construction. In the case you outline a facial challenge might fail, but an as-applied challenge might have more success, since it could be easily shown that the “notwithstanding” word was ignored.

Although living in Massachusetts and not an attorney, it has always been known that the US Constitution takes priority over any state constitution. It is also my understanding that ANY changes to the US Constitution, that follows the path laidout in the constitution (congressional approval…approval by 3/4 of the states…congressional approval again)within 7 years are valid. Even though ridiculous or offensive, anything can become law if approved as an amedment. Nothing following this procedure is unconstitutional.
At the moment, I am looking for an attorney in Massachusetts (pro bono) to ask the state court for an injunction prohibiting the registration or voting of anyone who is not a citizen. The massachusetts constitution clearly states that only a citizen (natural born or naturized) is allowed to vote. The legislature has never made changed to our constitution, but they allow anyone and everyone to vote even illegal immigrants. I want to ask for an injunction to force my city from registering people or allowing people to vote without checking citizenship. This might force the legislature to address the issue of allowing noncitizens to vote. any help out there?
thanks John