Question For Lawyers and Constitutional Scholars

[MyTeamIsOnTheFloor]

You got yer US Constitution.
You got yer Executive Branch.
You got yer Legislative Branch.
You got yer Judicial Branch.

You got yer state Constitution.
You got yer Executive Branch in a state.
You got yer Legislative Branch in a state.
You got yer Judicial Branch in a state.

You got Marbury v Madison that says ”The federal Court interprets the law and the Constitution. that’s why we are here.”

So now you have states putting questions on the upcoming ballot, which - while worded different - in effect say, “Dear Voter - please read the Constitution and vote yes or no - tell us if it does or does not provide/protect a right to abortion.”

Can a state legislature or a group of petition signers “legally” get such a question on the ballot, cut the courts out of the interpretation role, and use this process to interpret a Constitution?

Yes, to some extent in some places it will depend on language of the state Constitution, and without reading 50 of them, I guess it is possible for this process to have been written into a Constitution. Moreover, it would be, um, “controversial?” to suggest that “The People” have no such DIRECT role in “helping” a court and/or legislature in interpreting a Constitution. (they have multiple indirect roles - letting folks who write and interpret a Constitution, but to vote on what it means? Can a voter Constitutional interpretation be, urp, UN-Constitutional?

Could Lincoln free slaves through a war power that the Constitution did not specify? He thought he could. He did it. He felt it was “approved” by voters who kept him in office the next election, but there was no “ballot” asking voters to say “Does the Constitution allow a President to issue an Emancipation Proclamation?”

Will such a ballot ever be treated as anything but advisory? Will The People, in their righteous indignant ignorance rise up against a ruling that says “STFU, your court will tell what this means - your job is electing and lobbying your elected?

 

[Marvin the Martian]

You got yer US Constitution.
You got yer Executive Branch.
You got yer Legislative Branch.
You got yer Judicial Branch.

You got yer state Constitution.
You got yer Executive Branch in a state.
You got yer Legislative Branch in a state.
You got yer Judicial Branch in a state.

You got Marbury v Madison that says ”The federal Court interprets the law and the Constitution. that’s why we are here.”

So now you have states putting questions on the upcoming ballot, which - while worded different - in effect say, “Dear Voter - please read the Constitution and vote yes or no - tell us if it does or does not provide/protect a right to abortion.”

Can a state legislature or a group of petition signers “legally” get such a question on the ballot, cut the courts out of the interpretation role, and use this process to interpret a Constitution?

Yes, to some extent in some places it will depend on language of the state Constitution, and without reading 50 of them, I guess it is possible for this process to have been written into a Constitution. Moreover, it would be, um, “controversial?” to suggest that “The People” have no such DIRECT role in “helping” a court and/or legislature in interpreting a Constitution. (they have multiple indirect roles - letting folks who write and interpret a Constitution, but to vote on what it means? Can a voter Constitutional interpretation be, urp, UN-Constitutional?

Could Lincoln free slaves through a war power that the Constitution did not specify? He thought he could. He did it. He felt it was “approved” by voters who kept him in office the next election, but there was no “ballot” asking voters to say “Does the Constitution allow a President to issue an Emancipation Proclamation?”

Will such a ballot ever be treated as anything but advisory? Will The People, in their righteous indignant ignorance rise up against a ruling that says “STFU, your court will tell what this means - your job is electing and lobbying your elected?

I am neither but could we just consider it an opportunity for the public at large to file a friend of the court brief?

 

[UncleMark]

Can a state legislature or a group of petition signers “legally” get such a question on the ballot, cut the courts out of the interpretation role, and use this process to interpret a Constitution?

[IANAL]

I don't think this is what's happening, is it? They are amending their Constitutions (or voting against doing that), not interpreting them.

 

[MyTeamIsOnTheFloor]

[IANAL]

I don't think this is what's happening, is it? They are amending their Constitutions (or voting against doing that), not interpreting them.

In some places maybe - but in others (here in Kentucky) they are asking voters to say "our Constitution does not contain the protection/right." And my memory is that at least 1 other state, maybe more, is doing the same thing.

I'd prefer a ballot that says "do you amend to say XYZ" (at least in states where a Constitution says such a ballot is the method amendment).

 

[UncleMark]

In some places maybe - but in others (here in Kentucky) they are asking voters to say "our Constitution does not contain the protection/right." And my memory is that at least 1 other state, maybe more, is doing the same thing.

I'd prefer a ballot that says "do you amend to say XYZ" (at least in states where a Constitution says such a ballot is the method amendment).

So this is a ballot initiative. Does it have the force of law? But even if it did, wouldn't the courts be able to strike it down if it didn't meet constitutional muster? And under Marbury, the courts could say it's unconstitutional-- under Marbury.

 

[TheOriginalHappyGoat]

In some places maybe - but in others (here in Kentucky) they are asking voters to say "our Constitution does not contain the protection/right." And my memory is that at least 1 other state, maybe more, is doing the same thing.

I'd prefer a ballot that says "do you amend to say XYZ" (at least in states where a Constitution says such a ballot is the method amendment).

This is the actual text of the Kentucky initiative:

"Are you in favor of amending the Constitution of Kentucky by creating a new Section of the Constitution to be numbered Section 26A to state as follows: To protect human life, nothing in this Constitution shall be construed to secure or protect a right to abortion or require the funding of abortion?"

Sure looks like a Constitutional amendment to me.

 

[anon_6hv78pr714xta]

You got yer US Constitution.
You got yer Executive Branch.
You got yer Legislative Branch.
You got yer Judicial Branch.

You got yer state Constitution.
You got yer Executive Branch in a state.
You got yer Legislative Branch in a state.
You got yer Judicial Branch in a state.

You got Marbury v Madison that says ”The federal Court interprets the law and the Constitution. that’s why we are here.”

So now you have states putting questions on the upcoming ballot, which - while worded different - in effect say, “Dear Voter - please read the Constitution and vote yes or no - tell us if it does or does not provide/protect a right to abortion.”

Can a state legislature or a group of petition signers “legally” get such a question on the ballot, cut the courts out of the interpretation role, and use this process to interpret a Constitution?

Yes, to some extent in some places it will depend on language of the state Constitution, and without reading 50 of them, I guess it is possible for this process to have been written into a Constitution. Moreover, it would be, um, “controversial?” to suggest that “The People” have no such DIRECT role in “helping” a court and/or legislature in interpreting a Constitution. (they have multiple indirect roles - letting folks who write and interpret a Constitution, but to vote on what it means? Can a voter Constitutional interpretation be, urp, UN-Constitutional?

Could Lincoln free slaves through a war power that the Constitution did not specify? He thought he could. He did it. He felt it was “approved” by voters who kept him in office the next election, but there was no “ballot” asking voters to say “Does the Constitution allow a President to issue an Emancipation Proclamation?”

Will such a ballot ever be treated as anything but advisory? Will The People, in their righteous indignant ignorance rise up against a ruling that says “STFU, your court will tell what this means - your job is electing and lobbying your elected?

No.

 

[Joe_Hoopsier]

This is the actual text of the Kentucky initiative:

"Are you in favor of amending the Constitution of Kentucky by creating a new Section of the Constitution to be numbered Section 26A to state as follows: To protect human life, nothing in this Constitution shall be construed to secure or protect a right to abortion or require the funding of abortion?"

Sure looks like a Constitutional amendment to me.

Do their roles and procedures to admend or add to the state constitution include ballot measures?
If not, then I would take this question on a ballot, a very good, real time, measure of the public's intentions.
I suspect that this is not a way to make law as defined, thus it's a good way to take the publics temperature, painlessly, before the rectal temp is forced.

Honestly, I think I am for MUCH MUCH MUCH more ballot question, much more frequently. Since we all seem to have limited options on who to elect and once they are there, have ALL of the incentive to get rich and NONE of the incentive to carry our message (and frankly that message is hard to know, the ballot would help answer that question).
Do like the Dem's, They never have a proposal that is solid. They have 30 ideas that they present to a select, hidden, poll. The 3 that are the most positive and all the rest are existential threats to human kind (based on polling from 19 yr old Harvard pollitical servants).

 

[MyTeamIsOnTheFloor]

This is the actual text of the Kentucky initiative:

"Are you in favor of amending the Constitution of Kentucky by creating a new Section of the Constitution to be numbered Section 26A to state as follows: To protect human life, nothing in this Constitution shall be construed to secure or protect a right to abortion or require the funding of abortion?"

Sure looks like a Constitutional amendment to me.

All I know is that the ACLU argued it was an unconstitutional delegation of power/duty from the legislature to the electorate of an exclusively judicial constitutional duty, and that “trigger laws” did the same, by making SCOTUS the determinate decision-maker as to the timing of when a right under a Kentucky statute existed or ended.

Don't blame the messenger.

Also heard one judge respond to the “concept” by saying “well, the legislature rarely consults the judiciary in advance* - or even the Legislative Research Commission - they just kind of do what they think is a good idea.”

* Advisory opinions ARE rare and I ass-u-me also differ from state to state.

 

[TheOriginalHappyGoat]

All I know is that the ACLU argued it was an unconstitutional delegation of power/duty from the legislature to the electorate of an exclusively judicial constitutional duty, and that “trigger laws” did the same, by making SCOTUS the determinate decision-maker as to the timing of when a right under a Kentucky statute existed or ended.

Don't blame the messenger.

Also heard one judge respond to the “concept” by saying “well, the legislature rarely consults the judiciary in advance* - or even the Legislative Research Commission - they just kind of do what they think is a good idea.”

* Advisory opinions ARE rare and I ass-u-me also differ from state to state.

I'd love to see that argument. I can't find it anywhere, and it sounds like a really poor argument.

But then, I'm not licensed in Kentucky. I don't know what kind of backwoods nonsense qualifies as "law" down around your parts.

 

[MyTeamIsOnTheFloor]

I'd love to see that argument. I can't find it anywhere, and it sounds like a really poor argument.

But then, I'm not licensed in Kentucky. I don't know what kind of backwoods nonsense qualifies as "law" down around your parts.

The Kentucky case is a mess. The Court of Appeals made no detailed review of findings by the trial court that issued the injunction that peevents the trigger law from going into effect. Without explaining why, they ruled there not enough of an emergency to justify an emergency hearing, but there WAS enough of an emergency to have the Supreme Court take the case. The Supreme Court agreed the emergency justified them taking the case away from the Court of Appeals, but enough to hear it before the voters vote on the ballot initiative in November.

A wildly liberal justice and a wildly conservative justice, both retiring and not needing votes any more, dissented, saying “WTF - biggest issue of our lifetimes - judges make rulings - we should be hearing the case and doing our job.”

The vote will change it all, no matter the ultimate effect.

 

[Rockport Zebra]

"nothing in this constitution shall be construed", That phrase in my thinking restricts the judicial branch from interpreting.

 

[anon_6hv78pr714xta]

"nothing in this constitution shall be construed", That phrase in my thinking restricts the judicial branch from interpreting.

It does. But so would this and I think they are functionally equivalent:

"To protect human life, the Kentucky Constitution does not secure or protect a right to abortion or require the funding of abortion."

 

[MyTeamIsOnTheFloor]

I'd love to see that argument. I can't find it anywhere, and it sounds like a really poor argument.

But then, I'm not licensed in Kentucky. I don't know what kind of backwoods nonsense qualifies as "law" down around your parts.

PS - which argument? The one about timing or the one about interpretation generally?

 

[Sope Creek]

You got yer US Constitution.
You got yer Executive Branch.
You got yer Legislative Branch.
You got yer Judicial Branch.

You got yer state Constitution.
You got yer Executive Branch in a state.
You got yer Legislative Branch in a state.
You got yer Judicial Branch in a state.

You got Marbury v Madison that says ”The federal Court interprets the law and the Constitution. that’s why we are here.”

So now you have states putting questions on the upcoming ballot, which - while worded different - in effect say, “Dear Voter - please read the Constitution and vote yes or no - tell us if it does or does not provide/protect a right to abortion.”

Can a state legislature or a group of petition signers “legally” get such a question on the ballot, cut the courts out of the interpretation role, and use this process to interpret a Constitution? Depends on what the state's law/constitution says.

Yes, to some extent in some places it will depend on language of the state Constitution, and without reading 50 of them, I guess it is possible for this process to have been written into a Constitution. Moreover, it would be, um, “controversial?” to suggest that “The People” have no such DIRECT role in “helping” a court and/or legislature in interpreting a Constitution. (they have multiple indirect roles - letting folks who write and interpret a Constitution, but to vote on what it means? Depends on who the folks are. To some it'll be controversial, to others, not. Can a voter Constitutional interpretation be, urp, UN-Constitutional? Of course. The state supreme court (Court of Appeals in New York) makes this call.

Could Lincoln free slaves through a war power that the Constitution did not specify? He thought he could. He did it. He felt it was “approved” by voters who kept him in office the next election, but there was no “ballot” asking voters to say “Does the Constitution allow a President to issue an Emancipation Proclamation?” Beats me. My guess is that time gone by, changes in society on reliance upon the EP, and the Junteeth federal holiday might be enough authority for even the current SCOTUS to sanction the EP.

Will such a ballot ever be treated as anything but advisory? Dunno. Will The People, in their righteous indignant ignorance rise up against a ruling that says “STFU, your court will tell what this means - your job is electing and lobbying your elected? Depends on who the folks are. My guess is that some will get a burr up their ass about it, because they don't want to be governed by "elites". (You know, the "Those elites work for ME. They do what I tell them to do." crowd.) Those folks belong in a hunter/gatherer society. Perhaps that's where we're headed anyway with climate change and politics being what they are . . . .

 

[Sope Creek]

PS - which argument? The one about timing or the one about interpretation generally?

I'd guess he's talking about the delegation of powers argument.