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Are Constitutions Unamendable?

Usually liberals believe that constitutions are easily amendable, and without going through such troublesome and difficult procedures as the U.S. Constitution?s Article V process. Many judges, to judge by their practices, believe they have the authority to ?construe? certain rights right out of the text, or others (think ?emanations and penumbra?) into it.

Now comes a novel legal theory of amendment (or lack thereof) from the former Governor Moonbeam of California, its current Attorney General and future gubernatorial candidate, Jerry Brown, who argues that the California constitution is unamendable by the people (at least by majorities of which he disapproves).

California Atty. Gen. Jerry Brown asked the state Supreme Court on Friday to invalidate the voter-approved ban on gay marriage, declaring that ?the amendment process cannot be used to extinguish fundamental constitutional rights without compelling justification.?
....
The California Constitution protects certain rights as ?inalienable,? Brown wrote. Those include a right to liberty and to privacy, which the courts have said includes a person?s right to marry.

The issue before the court ?presents a conflict between the constitutional power of the voters to amend the Constitution, on the one hand, and the Constitution?s Declaration of Rights, on the other,? Brown wrote.

The issue ?is whether rights secured under the state Constitution?s safeguard of liberty as an ?inalienable? right may intentionally be withdrawn from a class of persons by an initiative amendment.?

Voters are allowed to amend other parts of the Constitution by majority vote, but to use the ballot box to take away an ?inalienable? right would establish a ?tyranny of the majority,? which the Constitution was designed, in part, to prevent, he wrote.

If only slaveholders (or, arguably, former slaveholders) had been as smart as Jerry Brown, they could have urged the Supreme Court to invalidate the 13th Amendment, which abolished slavery, on the Brownian ground that the Constitution as adopted protected property, including property in slaves, and that that right should not be sacrificed to the whims of a tyrannical majority.

Full post as published by Discriminations on December 21, 2008 (boomark / email).