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	<title>Comments on: Can the Constitution be unconstitutional?</title>
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	<link>http://apublicdefender.com/2008/10/10/can-the-constitution-be-unconstitutional/</link>
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		<title>By: California Supreme Court to consider challenges Prop 8 &#124; a public defender</title>
		<link>http://apublicdefender.com/2008/10/10/can-the-constitution-be-unconstitutional/comment-page-1/#comment-43594</link>
		<dc:creator>California Supreme Court to consider challenges Prop 8 &#124; a public defender</dc:creator>
		<pubDate>Thu, 20 Nov 2008 13:20:13 +0000</pubDate>
		<guid isPermaLink="false">http://apublicdefender.com/?p=1606#comment-43594</guid>
		<description>[...] My previous thoughts on Proposition 8 and it&#8217;s validity are here and here. [...]</description>
		<content:encoded><![CDATA[<p>[...] My previous thoughts on Proposition 8 and it&#8217;s validity are here and here. [...]</p>
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		<title>By: California Resident</title>
		<link>http://apublicdefender.com/2008/10/10/can-the-constitution-be-unconstitutional/comment-page-1/#comment-42483</link>
		<dc:creator>California Resident</dc:creator>
		<pubDate>Wed, 05 Nov 2008 17:27:40 +0000</pubDate>
		<guid isPermaLink="false">http://apublicdefender.com/?p=1606#comment-42483</guid>
		<description>Okay so the Same Sex Marriage Law passed in California was found to violate the Constitution of California.

So now Proposition 8 just passed and the citizens of California are adding a Constitutional Amendment stating the exact same thing that the unconstitutional law did.

Thus your answer is now wrong.

What CA found unconstitutional in law due to the equal protection clause they are adding as a constitutional amendment which now conflicts with another part of the CA Constitution.</description>
		<content:encoded><![CDATA[<p>Okay so the Same Sex Marriage Law passed in California was found to violate the Constitution of California.</p>
<p>So now Proposition 8 just passed and the citizens of California are adding a Constitutional Amendment stating the exact same thing that the unconstitutional law did.</p>
<p>Thus your answer is now wrong.</p>
<p>What CA found unconstitutional in law due to the equal protection clause they are adding as a constitutional amendment which now conflicts with another part of the CA Constitution.</p>
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		<title>By: So what happens after a Constitutional Convention? &#124; a public defender</title>
		<link>http://apublicdefender.com/2008/10/10/can-the-constitution-be-unconstitutional/comment-page-1/#comment-42276</link>
		<dc:creator>So what happens after a Constitutional Convention? &#124; a public defender</dc:creator>
		<pubDate>Sat, 01 Nov 2008 23:33:31 +0000</pubDate>
		<guid isPermaLink="false">http://apublicdefender.com/?p=1606#comment-42276</guid>
		<description>[...] if a Constitutional Amendment violates another provision of the [...]</description>
		<content:encoded><![CDATA[<p>[...] if a Constitutional Amendment violates another provision of the [...]</p>
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		<title>By: Same-sex marriage: How long will it last in CT? &#124; a public defender</title>
		<link>http://apublicdefender.com/2008/10/10/can-the-constitution-be-unconstitutional/comment-page-1/#comment-41587</link>
		<dc:creator>Same-sex marriage: How long will it last in CT? &#124; a public defender</dc:creator>
		<pubDate>Sun, 19 Oct 2008 22:15:46 +0000</pubDate>
		<guid isPermaLink="false">http://apublicdefender.com/?p=1606#comment-41587</guid>
		<description>[...] same-sex marriage was now legal in CT. Ah, but were that the end of the story. As I mentioned in my oddly prescient post the morning of the decision, there will be a question on the ballot this Nov. 4th, asking voters [...]</description>
		<content:encoded><![CDATA[<p>[...] same-sex marriage was now legal in CT. Ah, but were that the end of the story. As I mentioned in my oddly prescient post the morning of the decision, there will be a question on the ballot this Nov. 4th, asking voters [...]</p>
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		<title>By: Daniel</title>
		<link>http://apublicdefender.com/2008/10/10/can-the-constitution-be-unconstitutional/comment-page-1/#comment-41486</link>
		<dc:creator>Daniel</dc:creator>
		<pubDate>Sat, 18 Oct 2008 05:45:52 +0000</pubDate>
		<guid isPermaLink="false">http://apublicdefender.com/?p=1606#comment-41486</guid>
		<description>BTW, I just went and read your link to the SSRN article. OK. That guy is dumb. I mean, it&#039;s really sad that this is what&#039;s being taught in law school. The problem with his answer is that it&#039;s completely disconnected from political theory. After all, our from of government is first and foremost not a legal system, it&#039;s a political system, a way of regulating the community, the polis. I totally disagree with the notion that Scotus decisions are *binding* on the other branches of government. OTOH, I think that the structure of the constitution itself counsels for a comity between the branches. It is a referral to this comity that is the reason why the court doesn&#039;t come back an yell &quot;Dred Scott&quot; again. Scotus would lose all of it&#039;s good will and be seen as a tyrannical institution *as a political matter* if it yelled &quot;Dred Scott&quot; yet again.

At the end of the day, Scotus power comes from the same location as all power: it&#039;s legitimacy as perceived by the people seen as a whole (the polis). Given that a civil war had just been fought over these issues, only some type of insane freak would have come back and yelled &quot;Dred Scott&quot; once again.</description>
		<content:encoded><![CDATA[<p>BTW, I just went and read your link to the SSRN article. OK. That guy is dumb. I mean, it&#8217;s really sad that this is what&#8217;s being taught in law school. The problem with his answer is that it&#8217;s completely disconnected from political theory. After all, our from of government is first and foremost not a legal system, it&#8217;s a political system, a way of regulating the community, the polis. I totally disagree with the notion that Scotus decisions are *binding* on the other branches of government. OTOH, I think that the structure of the constitution itself counsels for a comity between the branches. It is a referral to this comity that is the reason why the court doesn&#8217;t come back an yell &#8220;Dred Scott&#8221; again. Scotus would lose all of it&#8217;s good will and be seen as a tyrannical institution *as a political matter* if it yelled &#8220;Dred Scott&#8221; yet again.</p>
<p>At the end of the day, Scotus power comes from the same location as all power: it&#8217;s legitimacy as perceived by the people seen as a whole (the polis). Given that a civil war had just been fought over these issues, only some type of insane freak would have come back and yelled &#8220;Dred Scott&#8221; once again.</p>
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		<title>By: Daniel</title>
		<link>http://apublicdefender.com/2008/10/10/can-the-constitution-be-unconstitutional/comment-page-1/#comment-41483</link>
		<dc:creator>Daniel</dc:creator>
		<pubDate>Sat, 18 Oct 2008 05:21:22 +0000</pubDate>
		<guid isPermaLink="false">http://apublicdefender.com/?p=1606#comment-41483</guid>
		<description>I agree with John. A rational person (not to say all judges are rational) would assume that a later (in time) amendment was made with a full and complete understanding of the constitution as it stood when the amendment was being discussed. Hence, any conflict between that later amendment and an earlier one would be resolved in favor of the later amendment, even if that later amendment did not specifically overrule the earlier amendment. In political theory the term used is &quot;binding&quot;. Namely, a prior act of a legislature (or, in this case of the citizen&#039;s themselves) can never bind a current or future legislature. The basis for this theory is simply that power is always exercised in the present with full knowledge of the past but never with full knowledge of the future. 

However, this would only apply to a constitution with in the state. I think it&#039;s a very interesting question as to what would happen if Scotus got involved. It&#039;s argued that when the states were accepted into the Union, the Federal government (as a proxy for the other states themselves) accepted them on the condition that they were obligated to be bound by the Federal constitution when it conflicted with the state&#039;s own constitution (Utah is a good example of this). However, the exact parameters of this theory have never been fully explored. For example, given that marriage is traditionally left to the states, I find it unlikely that Scotus would rule any state constitutional change in that regard a violation of the federal constitution. But I could imagine situations (for example, the Commerce clause) where Scotus would rule a validly passed state constitutional amendment federally unconstitutional. OTOH, if there was a federal constitutional amendment that defined marriage in a certain way, it would be an open question as to if and how that would apply to the states via the 14th amendment to the US Constitution.</description>
		<content:encoded><![CDATA[<p>I agree with John. A rational person (not to say all judges are rational) would assume that a later (in time) amendment was made with a full and complete understanding of the constitution as it stood when the amendment was being discussed. Hence, any conflict between that later amendment and an earlier one would be resolved in favor of the later amendment, even if that later amendment did not specifically overrule the earlier amendment. In political theory the term used is &#8220;binding&#8221;. Namely, a prior act of a legislature (or, in this case of the citizen&#8217;s themselves) can never bind a current or future legislature. The basis for this theory is simply that power is always exercised in the present with full knowledge of the past but never with full knowledge of the future. </p>
<p>However, this would only apply to a constitution with in the state. I think it&#8217;s a very interesting question as to what would happen if Scotus got involved. It&#8217;s argued that when the states were accepted into the Union, the Federal government (as a proxy for the other states themselves) accepted them on the condition that they were obligated to be bound by the Federal constitution when it conflicted with the state&#8217;s own constitution (Utah is a good example of this). However, the exact parameters of this theory have never been fully explored. For example, given that marriage is traditionally left to the states, I find it unlikely that Scotus would rule any state constitutional change in that regard a violation of the federal constitution. But I could imagine situations (for example, the Commerce clause) where Scotus would rule a validly passed state constitutional amendment federally unconstitutional. OTOH, if there was a federal constitutional amendment that defined marriage in a certain way, it would be an open question as to if and how that would apply to the states via the 14th amendment to the US Constitution.</p>
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		<title>By: Same-sex marriage legal in Connecticut &#124; a public defender</title>
		<link>http://apublicdefender.com/2008/10/10/can-the-constitution-be-unconstitutional/comment-page-1/#comment-40971</link>
		<dc:creator>Same-sex marriage legal in Connecticut &#124; a public defender</dc:creator>
		<pubDate>Sat, 11 Oct 2008 00:38:14 +0000</pubDate>
		<guid isPermaLink="false">http://apublicdefender.com/?p=1606#comment-40971</guid>
		<description>[...] (where some of the comments echo my question in this morning&#8217;s post - how prescient was [...]</description>
		<content:encoded><![CDATA[<p>[...] (where some of the comments echo my question in this morning&#8217;s post &#8211; how prescient was [...]</p>
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		<title>By: john</title>
		<link>http://apublicdefender.com/2008/10/10/can-the-constitution-be-unconstitutional/comment-page-1/#comment-40942</link>
		<dc:creator>john</dc:creator>
		<pubDate>Fri, 10 Oct 2008 15:03:44 +0000</pubDate>
		<guid isPermaLink="false">http://apublicdefender.com/?p=1606#comment-40942</guid>
		<description>I might distinguish two cases

1) Some constitutions (germany comes to mind, as does our article V with respect to senatorial representation) are explicitly limited in how they may be amended. 

Hence, you couldn&#039;t just amend the constitution to give Maine three senators--that would be unconstitutional under article V. Instead, you&#039;d have to amend article V first, and then amend article I.

2) In most other cases, just like statutes, it&#039;s a courtesy to note when you repeal something, but you don&#039;t have to. (see Sixteenth amendment-implicitly overruling Art. I S9 &quot;No capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken.&quot;)

If the two provisions cannot be read together (and you know courts will try to read them consistently), I think we&#039;d presume that the amendment overruled the earlier provision, and then controls.</description>
		<content:encoded><![CDATA[<p>I might distinguish two cases</p>
<p>1) Some constitutions (germany comes to mind, as does our article V with respect to senatorial representation) are explicitly limited in how they may be amended. </p>
<p>Hence, you couldn&#8217;t just amend the constitution to give Maine three senators&#8211;that would be unconstitutional under article V. Instead, you&#8217;d have to amend article V first, and then amend article I.</p>
<p>2) In most other cases, just like statutes, it&#8217;s a courtesy to note when you repeal something, but you don&#8217;t have to. (see Sixteenth amendment-implicitly overruling Art. I S9 &#8220;No capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken.&#8221;)</p>
<p>If the two provisions cannot be read together (and you know courts will try to read them consistently), I think we&#8217;d presume that the amendment overruled the earlier provision, and then controls.</p>
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