Question For Lawyers and Constitutional Scholars
- The Water Cooler
- 15 Replies
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?
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?