-- including the new $3,000 Online Journalism prize -- is now open. Full details at http://www.bastiatprize.org; the deadline for submissions is June 30. "Started in 2002, the Bastiat Prize was inspired by 19th-century French philosopher Frédéric Bastiat’s compelling defence of liberty and eloquent explanations of complex economic issues. Judges have included former UK Chancellor Lord Lawson, Pulitzer prize-winning author Anne Applebaum, former Bastiat Prize winner and best-selling author Amity Shlaes, Lady Thatcher and Nobel laureates James Buchanan and the late Milton Friedman."

"Last year’s competition" -- which didn't include an Online Journalism category -- "attracted over 250 entrants from more than 50 countries. The winner was Barton Hinkle, deputy op-ed editor and columnist for the Richmond Times-Dispatch. Second and third prizes went to Swaminathan Aiyar, Consulting Editor of the Economic Times and Times of India, and Fraser Nelson, Political Editor of The Spectator. Previous winners include Amit Varma of Mint (India), Robert Guest of The Economist and Brian Carney of The Wall Street Journal."

I've much appreciated PowerBlogs, which we've been using for several years, but I'm afraid that Chris Lansdown is shutting PowerBlogs down, and we'll have to move to some other blogging software and some other hosting company. Any suggestions, especially as to blogging software? We're looking for reliability, easy of use, and a good feature set. We'd naturally prefer if it wasn't very expensive, but if it costs some money to do this right, we'll likely be happy to spend it.

If you have recommendations, positive, negative, or (especially) comparative, please post them, or e-mail me at volokh at law.ucla.edu. Many thanks!

President Obama. Greg Sargent (The Plum Line) reports:

In an interview to air on NBC later tonight, Obama concedes she may have misspoke but that her larger meaning was clear and uncontroversial.

According to the NBC press release, Obama says:

“I’m sure she would have restated it. But if you look in the entire sweep of the essay that she wrote, what’s clear is that she was simply saying that her life experiences will give her information about the struggles and hardships that people are going through — that will make her a good judge.”

For my thinking on the quote, see this item on politico.com.

My "arguably" post reminded me of a related practice — saying "Professor X says, 'This law is unconstitutional [or whatever X is saying]'" when you agree with Professor X, but (1) without expressly saying that you agree, and (2) without explaining why you agree with Professor X and not Professor Y (and there usually is a Professor Y who says the contrary).

If you want to endorse Professor X's view, be clear and candid about it; say "As Professor X says, 'This law is unconstitutional'" or perhaps just quote the assertion, "'This law is unconstitutional,'" and cite X in the footnote. That will make clear to the reader that you are embracing that assertion, rather than leaving a question in the reader's mind.

Putting things that way will also likely make it clear to you that you are now asserting something that you need to defend. And it should lead you to ask yourself, "Will the reader agree with the quoted material, and, if not, what counterarguments will the reader mentally make?" Unless Professor X is a very respected authority indeed, simply X's name won't persuade the reader. Either the quote must itself contain a persuasive and relatively complete argument, or you have to explain why the quote is correct.

This should be obvious, but I've been struck by how often legal writers (especially students) miss it.

UPDATE: Just to clarify -- I'm referring here to the use of the phrase in legal argument, where the author is expected to defend his assertions in some detail. Naturally, in lots of contexts (e.g., casual conversation), the rules are entirely different.

I see this often in legal arguments, especially (but not only) in student work -- the writer says something like "This option would arguably violate the right to jury trial," and feels that this sufficiently distances him from the assertion that he doesn't actually need to defend it.

This sort of usage is, and should be, quite unpersuasive. If you want to argue that the option would violate the right to jury trial, argue it. But if you don't think you have enough of an argument to support the position, then don't just assert that the position is "arguably" true.

Of course, sometimes a substantial possibility of some legal outcome might be enough to counsel against risking that outcome: For instance, a prosecutor might shy away from a (relatively low-benefit) litigation tactic simply because that tactic could cause the eventual conviction to be reversed, even if that result isn't certain or even highly likely. But there too "arguably" isn't enough -- you have to argue why there is such a material risk, and why this risk is reason to reject the option.

So the word "arguably" always puts on me guard that there might be an assertion being made without any supporting argument. And most of the time, that's precisely what's going on.

is here; Prof. Paulsen's forthcoming Yale Law Journal piece, which touches on the constitutional presidential power question, is here. I don't know enough about the separation of powers questions to have an informed opinion, but Paulsen is a serious and thoughtful scholar, and his views struck me as worth passing along. For other views from the same hearing, see Prof. Philip Zelikow's testimony, Prof. David Luban's testimony (which on my quick glance seems to be the one most at odds with Prof. Paulsen's analysis), Prof. Robert Turner's testimony, and Prof. Jeffrey F. Addicott's testimony, and Ali Soufan's testimony.

UPDATE: The comment thread was largely occupied with largely substance-free sniping (plus criticism of the sniping); I deleted most of the comments, and tried to leave the more substantive ones, hoping that this might get it back on the right track.

Which English words (that are not proper nouns) stem from the names of rivers? Let's set aside, as not very interesting, the terms for people or cultures from an area close to or related to the river (which might be proper nouns in any event).

Please check your answers (for instance, in dictionary.com) before posting them, rather than just relying on vague memory or guesswork. Note that I might (or might not) delete some comments that seem to be nonresponsive or duplicative in order to keep the thread focused on the answers.

The Pew Research Center has an interesting item on the subject. An interesting item (one of many in the piece):

[S]ome 99% of all immigrants from Mexico call themselves Hispanic. But just 87% of immigrants from Venezuela adopt this label, as do 86% of immigrants from Argentina, 70% of immigrants from Spain and only 67% from Panama. As for race, 54% of all Hispanics in the U.S. self-identify as white, 1.5% self-identify as black, 40% do not identify with any race and 3.8% identify as being two or more races.

Thanks to Prof. J. Michael Bitzer for the pointer.

From Stewart v. Howe, 17 Ill. 71 (1855):

This was an action for slander, commenced by Sophia Howe, by her next friend, complaining of Amos Stewart. The words, as proved, were: “She stole my money;” ““she stole ninety dollars;” “she is a smart little thief.” It was also in proof that Sophia was but nine years and nine months old....

SCATES, C. J.

The slanderer insists, in effect, upon the infancy of his intended victim, in justification of his malice. Feejee cannibalism could ask no greater license or security for the gratification and satiety of its unnatural and morbid appetite. I must confess that while the law recognizes the speaking and publication of actionable words as a wrong and injury, for which it offers a remedy, I shall feel, if judges may be allowed that pardonable weakness, that such a defence has not a solitary grace to recommend it to favor. I would sooner see the action abolished, than to read out infancy from the pale of its protection. If there can be a redeeming trait in the character of the cormorant, it must be in satiating his gluttony upon the strong and powerful, at the hazard of physical retribution. But judges have no right to feel, or at least to make it a predicate of their judgment. It is the head, and not the heart; and from it must proceed justice, legal justice, though the heavens fall by the fiat....

[The defendant's argument was that the statement would only be slanderous, at least in these circumstances, if it alleged that plaintiff had committed an indictable crime — and that couldn't be the case, because she was under the age of 10, and state law treated children under 10 as not being criminally responsible. The judge engaged in an extensive rebuttal of the argument, and concluded: -EV]

The law may and will spare infancy, but the slanderer cries aloud and spares not. I am not called on to say how young a plaintiff may sustain this action for words imputing crime, but, as called upon in this case, I am compelled to say that this plaintiff shall not shield himself from accountability, by alleging defendant's infancy, which should have afforded a conclusive reason for charitable forbearance of his malice and shall not constitute a shield and ground of defence to him.

UPDATE: "Plaintiff" and "defendant" are thus in the original (at least on Westlaw). I take it that the judge said this because Stewart, the defendant at trial, was the appellant before the Illinois Supreme Court (that's why his name is first in the case name), and Howe, the plaintiff at trial, was the appellee; perhaps in the lingo of the time, this led them to be called plaintiff and defendant (something that wouldn't be done today). Or maybe the judge just erred.

Dias v. City & County of Denver (paragraph break added):

[T]he plaintiffs have alleged a substantive due process violation sufficient to survive a motion to dismiss for failure to state a claim. Viewing the factual allegations in the light most favorable to the plaintiffs, as we must, the complaint plausibly alleges that the [pit bull ban] Ordinance is not rationally related to a legitimate government interest. Although the plaintiffs may be unable to demonstrate through evidence that the Ordinance is irrational, the complaint makes out a claim for relief.

It is uncontested that Denver has a legitimate interest in animal control -- the protection of health and safety of the public. Even so, the plaintiffs have alleged that the means by which Denver has chosen to pursue that interest are irrational. In particular, the plaintiffs contend that there is a lack of evidence that pit bulls as a breed pose a threat to public safety or constitute a public nuisance, and thus, that it is irrational for Denver to enact a breed-specific prohibition.

Pointing to the cases where courts across the country have rejected substantive due process challenges to pit bull bans, Denver argues that the Ordinance is rational as a matter of law. This argument misconceives the nature of the plaintiffs’ challenge. Specifically, the plaintiffs contend that although pit bull bans sustained twenty years ago may have been justified by the then-existing body of knowledge, the state of science in 2009 is such that the bans are no longer rational. [Footnote: Moreover, in the majority of cases where courts have sustained a pit bull ban as reasonable, they have done so based on a developed evidentiary record. No such record was developed in this case because the district court dismissed pursuant to Rule 12(b)(6).]

This claim finds some support in the AKC and UKC standards themselves, to which the plaintiffs direct us. The official UKC breed standard for the American Pit Bull Terrier, for instance, states that “[American Pit Bull Terriers] make excellent family companions and have always been noted for their love of children.” American Pit Bull Terriers are an “extremely friendly” breed “even with strangers. Aggressive behavior toward humans is uncharacteristic of the breed ....” Similarly, the AKC breed standard for Staffordshire Bull Terriers states that, “with its affection for its friends, and children in particular, its off-duty quietness and trustworthy stability, [the Staffordshire Bull Terrier is] a foremost all-purpose dog.” Without drawing factual inferences against the plaintiffs, the district court could not conclude at this early stage in the case that the Ordinance was rational as a matter of law.

We have no occasion to pass upon the ultimate merit of plaintiffs’ substantive due process challenge; that is not our role at this juncture. We are constrained to deciding if the complaint alleges facts sufficient to state a claim for relief. Whether the plaintiffs can marshal enough evidence to prevail on the merits of their claim that the Ordinance is irrational is a different matter entirely. But at the 12(b)(6) stage, we must assume that they can, even if it strikes us “that a recovery is very remote and unlikely.” Crediting the allegations in the complaint, and drawing all inferences therefrom in the light most favorable to the plaintiffs, we conclude that they have stated a plausible substantive due process violation.

Not a huge victory for the plaintiffs, for reasons the quote makes clear -- but still something of a victory, and one that in my experience has been pretty rare, given the Court's view that "In areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge [and substantive due process challenge -EV] if there is any reasonably conceivable state of facts that could provide a rational basis for the classification."

Thanks to How Appealing for the pointer.

American Atheists v. City of Detroit involves a program that “reimburse[d] up to 50% of the costs of refurbishing the exteriors of downtown buildings and parking lots” “in a discrete section of downtown Detroit,” and “covered all property in that area, including property owned by religious organizations.” The program was apparently prompted by the city’s desire to put on a good face for the then-upcoming 2006 Super Bowl, which was to be held in a city-built stadium.

“Of the $11.5 million allocated for completed and authorized projects, 6.4% ... went to [three] churches” in the area, but the court found that this was not a problem, chiefly because of the evenhanded nature of the funding program. Seems exactly right to me, as a matter of basic principles, namely that equal treatment is not establishment. Given the messy state of current Establishment Clause law (compare Mitchell v. Helms with Rosenberger v. Rector and Zelman v. Simmons-Harris), the result is not doctrinally obvious, but I think the panel makes a very good argument that it is correct even under the splintered Mitchell decision.

And as the court put it,

Excluding the churches from taking part in the program, by contrast, would send a far stronger message [than the alleged message of endorsement of religion sent by the inclusion of the churches -EV] — a message not of endorsement but of disapproval. It may be that the First Amendment did not compel Detroit to include religious groups in this downtown revitalization project, cf. Locke v. Davey, 540 U.S. 712, 719–21 (2004), but neither did it prohibit Detroit from including these groups in the project — either to enhance the success of the program (by revitalizing all of downtown) or to avoid sending a message of hostility to people of faith.

I agree with the dissent in Locke v. Davey, and think that discriminatory exclusion of religious people or institutions from generally available funding programs should be seen as unconstitutional. But even given the Court's contrary ruling in Locke, the Sixth Circuit's logic in the paragraph I quoted (and in the rest of the opinion) strikes me as quite right.

I should note, of course, that there are lots of good libertarian reasons for opposing government construction of stadiums, or government funding for refurbishing private buildings and parking lots. But if such funding is to take place, it's not necessary (and in my view, not proper) to discriminatorily exclude religious institutions from such evenhanded funding programs. Thanks to How Appealing for the pointer.

Check out Conwell v. Gray Loon Outdoor Marketing Group, Inc., decided May 19 by the Indiana Supreme Court. Is a custom-designed and designer-hosted Web site a good or a service? Who owns the site? Can the deletion of the site by the host (for nonpayment of the bills) constitute tortious conversion of the supposed owner's property? Not the sexy sort of cyberlaw, just the practically important sort.

See here for details and links.

UPDATE: Here's a video from IJ about the case.

The case in Murray v. Geithner, and here's an excerpt:

A motion brought pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief may be granted tests the legal sufficiency of Plaintiff’s claims. The Court must accept as true all factual allegations in the pleadings, and any ambiguities must be resolved in Plaintiff’s favor. While this standard is decidedly liberal, it requires more than the bare assertion of legal conclusions. Thus, a plaintiff must make “a showing, rather than a blanket assertion of entitlement to relief” and “[f]actual allegations must be enough to raise a right to relief above the speculative level.” ...

The Establishment Clause of the First Amendment provides that “Congress shall make no law respecting an establishment of religion.”. The clause has been construed as preventing the government “from enacting laws that have the purpose or effect of advancing or inhibiting religion.” The Court examines Establishment Clause challenges under the test delineated in Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971): “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster ‘an excessive government entanglement with religion.’” Recent Supreme Court decisions have modified the test slightly by “fold[ing] entanglement analysis into the effect analysis because ‘entanglement is . . . an aspect of the inquiry into a statute’s effect.’” Establishment Clause queries are conducted under the objective reasonable observer standard.

It is beyond question that the EESA [the Emergency Economic Stabilization Act of 2008] does not violate the Establishment Clause on its face. Congress enacted the EESA in response to what the parties portray as a monumental economic crisis for the sole purpose of restoring stability to financial institutions. The statute makes no mention of religion or religious institutions. Instead it focuses entirely on institutions that are primarily, and in most cases entirely, secular. Nothing from the plain text of the statute hints at an improper relationship between the government and religion.

It is the application of the EESA as it relates to AIG, however, that Plaintiff challenges. The Supreme Court has previously permitted as-applied challenges to facially constitutional statutes. ...

The circumstances of this case are historic, and the pressure upon the government to navigate this financial crisis is unfathomable. Times of crisis, however, do not justify departure from the Constitution. In this case, the United States government has a majority interest in AIG. AIG utilizes consolidated financing whereby all funds flow through a single port to support all of its activities, including Sharia-compliant financing. Pursuant to the EESA, the government has injected AIG with tens of billions of dollars, without restricting or tracking how this considerable sum of money is spent. At least two of AIG’s subsidiary companies practice Sharia-compliant financing, one of which was unveiled after the influx of government cash. After using the $40 billion from the government to pay down the $85 billion credit facility, the credit facility retained $60 billion in available credit, suggesting that AIG did not use all $40 billion consistent with its press release. Finally, after the government acquired a majority interest in AIG and contributed substantial funds to AIG for operational purposes, the government co-sponsored a forum entitled “Islamic Finance 101.” These facts, taken together, raise a question of whether the government’s involvement with AIG has created the effect of promoting religion and sufficiently raise Plaintiff’s claim beyond the speculative level, warranting dismissal inappropriate at this stage in the proceedings.

I'm surprised that the court has allowed the case to go forward, for reasons I described when the case was filed. At the same time, I continue to expect that the case will be thrown out, either on summary judgment or on appeal, for those very reasons. As I noted earlier, the theory is apparently that the government may not invest in any company that, in part of its operations, provides products that are tailored to a particular religious faith, and that may be accompanied by donations to religious charities. But lots of companies do this, for the simple reason that religious consumers have their religious tastes such as consumers have other ethical or esthetic tastes.

For instance, a food processing company might have a division that produces kosher products and donates some money to Jewish-specific charities (as a way of better wooing Jewish buyers). An investment company might seek to attract conservative Christian investors by offering a fund that doesn't invest in (say) hospital chains that perform abortions, and by donating some share of its profits to religious causes. Other companies might provide funds that don't invest in munitions manufacturers, to satisfy the desires of Quaker investors. A store might sell, among other products, religiously significant garments or religious symbols. A bookstore might sell religious books alongside other books.

Under the plaintiffs' theory, either Islam is subject to special constitutional constraints, or — once that constitutionally forbidden legal rule is rejected — all of these companies would somehow be forbidden as targets of government investments. The government couldn't bail them out. It presumably couldn't invest public employee retirement funds in them. It couldn't sell religious books alongside other books in public university bookstores, or serve kosher food alongside other food in public university cafeterias.

Likewise, a state-run liquor store wouldn't be able to stock kosher wine. (Visit this site, search for "kosher," and you'll see how much kosher wine the apparently Establishment-Clause-violating New Hampshire State Liquor Commission does indeed sell.) That's plainly wrong, under any sound theory of the Establishment Clause, or even under the broadest theories suggested by Justice Brennan and other Establishment Clause maximalists. (UPDATE: A state-run liquor store might be more restricted than a state-bailed-out company; for instance, it might not be able to make donations to religious causes, even to attract Jewish customers. But it would at the least be able to buy kosher wines, even from companies that themselves donate part of the proceeds to religious causes. And I think the state should be free to invest pension funds -- or bailout funds -- in a privately-owned liquor store that donates to religious causes as a means of attracting religious customers.)

The government investment decisions don't have a "primary religious purpose," because the obvious purpose is to prop up important companies — and have them continue making as much money as possible — and not to advance Islam. The government no more cares about advancing Sharia through the AIG bailout than my local Ralphs supermarket (or the New Hampshire State Liquor Commission) cares about advancing kosher laws by selling products that are certified kosher. The "primary religious effect" inquiry has always been extremely vague, but none of the precedents applying that inquiry would treat the continued provision by AIG of products that some religious customers like as a "primary religious effect."

The "endorsement" argument doesn't make sense here, because reasonable observers wouldn't treat the government's decision to bail out AIG, including its subdivision that sells financial products that Muslims prefer for religious reasons, as an endorsement of Islam. Again, the "endorsement" test is quite vague, but this is a pretty clear example: Making money by satisfying some customers' religious preferences (and lots of other customers' nonreligious preferences) isn't an endorsement of religion. Nor does the allegation that some of the money that is raised is donated to Muslim charities affect the analysis. That donating money to religious charities is good business for AIG doesn't make it impermissible for the government — which after all wants AIG to make as much money as possible, so the government isn't left paying the bill — to invest in AIG.

The only even theoretically plausible objection in such cases, I think, arises if the government becomes too entangled in the religious decisions of the company, for instance if government officials end up supervising the programs and deciding what Sharia law truly requires, or what really is or isn't kosher. But on the facts this just doesn't seem to be so: The operational decisions related to these religiously themed products and programs are made by the company (or perhaps even by the company's subcontractors), not by government officials. There seems to be no danger that some government officer would have to engage in quintessentially religious activities. And it is government decisionmaking, not government stock ownership, that triggers the Establishment Clause, which is one reason that government employee retirement plans can invest in companies without making them state actors governed by the Free Speech Clause, the Establishment Clause, the Due Process Clause, and so on. (This distinguishes the hypothetical of a government-chartered school, which remains a government actor, engaging in religious education.)

It's not exactly clear from the court's opinion what sort of facts the judge envisions might be enough to prove an Establishment Clause violation. If the judge believes that there'd be an Establishment Clause violation simply if it were proven at trial that government money is flowing to "Sharia-compliant financing," or that the government is cosponsoring an "Islamic Finance 101" forum, then the plaintiffs will win — but they shouldn't, and I'm pretty confident that such a decision would be reversed on appeal. Such catering to consumer preferences is no more an Establishment Clause violation than a state-owned liquor store's stocking kosher wine in order to satisfy its kosher-observing customers, plus educating its employees and contractors on which wines kosher-observing customers prefer.

On the other hand, perhaps the judge is waiting to see whether there's evidence of some other alleged misbehavior — maybe what I mentioned in the paragraph beginning "The only even theoretically plausible objection" (though again it's hard to tell, because the opinion is so terse on the subject). In that case, I'd expect that absent evidence of some such misbehavior, the case will be thrown out on summary judgment, as I think it should be.

A reader asked me about this today, and a radio interviewer didn't ask me, with (in my view) unfortunate results. OK, not that unfortunate, because I'm pretty easygoing about this -- when you bring an unusual name to a foreign country, you have to expect that people won't always pronounce it the way you do. But if you want to humor me, please say it in a way that rhymes with "Pollock" (with the accent on the first syllable, of course). It's not the standard Russian pronunciation, but it's the one I use myself in English.

The Foundation for Individual Rights in Education reports that this indeed happened, at the Community College of Allegheny County in Pennsylvania. At this point, the factual allegations are just the student's, with no confirmation by the school (the school was asked for its side of the matter on April 29, and wrote on May 13 that "a response will be forthcoming in a reasonable time frame," but hasn't said anything further). Still, I have found FIRE's past factual assertions to be quite reliable; and if the student's accusations are accurate, this seems like a serious First Amendment problem. Check out FIRE's summary, and the linked documents, and see for yourself.

I should note that the college apparently defended itself on the grounds that students couldn't use the name of the college without the college's permission. But according to FIRE, the name was used in a way that made clear that it was just identifying the location of a student group; I see no constitutional basis for the college to prohibit the use of a name in this context (though I suppose that it might, in an excess of caution, require that use of the name be accompanied with an express note that the college name is used only for identification purposes, and not as a sign of endorsement).

I should also note that the college reportedly asserted that its policy is to require preapproval of student publications; to the extent that such a policy is permitted on college property, it has to be nondiscretionary and viewpoint-neutral, and according to the student's account the college claimed that it would not approve publications that express this viewpoint. And the only policy that FIRE could find that supposedly covered this behavior (which the college reportedly labeled as "soliciation") was this one, which is pretty clearly unconstitutional:

Solicitation: The distribution or display of, and the personal contact with individuals or groups related to non-sponsored college material or events, without prior written approval of the college are prohibited. These actions are limited to public property; however, public property in this context does not include college property.

I hope to hear more about this case in the future, and especially to hear the college's side of the story.

Disclosure: I will be a keynote speaker at FIRE's 10th Anniversary event this October.

Here are Richard Epstein's column (which Ilya already linked to), and one by Walter Olson (of overlawyered.com).

I don't think that laws that punish hate crimes — i.e., criminal acts motivated by the victim's race, religion, sexual orientation, and the like — are unconstitutional. I think the U.S. Supreme Court's unanimous decision in Wisconsin v. Mitchell gets this right, for the right reasons.

Nonetheless, the decision discussed below, in which a person pled guilty for sending racist messages to a city councilman and to the mayor about the city councilman, helps show a problem with such statutes, especially when they cover speech — even assertedly constitutionally unprotected speech (such as threats, fighting words, telephone harassment, and the like) — rather than violent conduct. Based on the quoted material, I'm pretty sure the messages should be constitutionally protected, and a thoughtful and well-reasoned decision by the U.S. Court of Appeals for the D.C. Circuit (U.S. v. Popa) supports that view. But according to the defense lawyer, the defendant pled guilty to a misdemeanor, and went to jail because of it, because raising the First Amendment challenge exposed him to a risk of felony hate crime prosecution, which could have led to a much higher penalty.

The Columbian (Vancouver, Wash.), reports in its May 20 issue, that "Defense attorney Jon McMullen had considered arguing that the comments were protected as free speech, but facing the possibility of federal charges — which could have netted Reinhold more than a year in prison — his client decided to plead guilty." And an earlier article reported that, "Lawyers at the U.S. Attorney's Office became interested in the case and on Friday wrote to Reinhold's defense attorney, Jon McMullen, that they would let the case rest if Reinhold changed his plea.... 'Basically, they said, 'If you fight it down here, win lose or draw, we'll charge in federal court,'' McMullen said." Here, the threat of felony prosecution came from federal prosecutors, but it could equally well have come from state prosecutors under a felony hate crime statute.

Now I don't think this makes hate crime statutes unconstitutional, and this sort of pressure to plead guilty to a lesser charge and waive the right to appeal arises in all sorts of cases, not just cases such as this one. Nonetheless, this does highlight one way in which hate crimes laws can endanger free speech, even if this danger doesn't rise to the level of cause the laws to be unconstitutional. And it is one reason that (for instance) people who worry about suppression of constitutionally protected anti-homosexuality speech might be concerned about federal laws imposing harsher penalties for "hate crimes" based on sexual orientation, if those laws are broad enough to cover not just violence but also supposedly unprotected speech.

UPDATE ABOUT THE ORIGINAL POST IN THIS CHAIN (for those who are reading this one but continue to be interested in the original one): I should note that I assume the premise of the prosecution is that the black councilman was one of the recipients, which is what would make the e-mail even theoretically actionable as "cyberstalking." If the premise was that the defendant was sending offensive messages about a city councilman to other city councilmen, then the prosecution is even more outrageous. And I should acknowledge, on further thinking about this, that the state statute seems to allow such an unconstitutional result, because it provides (emphasis added),

(1) A person is guilty of cyberstalking if he or she, with intent to harass, intimidate, torment, or embarrass any other person, and under circumstances not constituting telephone harassment, makes an electronic communication [including e-mail] to such other person or a third party:

(a) Using any lewd, lascivious, indecent, or obscene words, images, or language, or suggesting the commission of any lewd or lascivious act;

(b) Anonymously or repeatedly whether or not conversation occurs; or

(c) Threatening to inflict injury on the person or property of the person called or any member of his or her family or household....

Again, if the prosecution is premised solely on the messages to third parties then this is a frightening result: It is completely unmoored from the premise of normal telephone harassment law (which is troublesome enough as to government officials, as Popa discusses), and it takes the view that it's a crime to send anonymous messages to government officials about other government officials "with intent to harass, intimidate, torment, or embarrass" the subject.

The Columbian (Vancouver, Wash.), reports in its May 20 issue:

[Christopher Reinhold] is serving an eight-day sentence in the Clark County Jail and will perform 20 days of community service [with the Battle Ground Cultural Diversity Task Force, which was formed in response to the incident] for sending racist e-mails last year about Battle Ground City Councilman Paul Zandamela....

Reinhold ... pleaded guilty March 30 to two counts of cyberstalking, a gross misdemeanor defined as using language meant to "harass, intimidate, torment or embarrass." ...

Zimmerman ... will also have to [pay $543 in fines and] attend two YWCA Eliminating Racism workshops and write a letter of apology to Zandamela....

According to court documents, Reinhold e-mailed a message Jan. 8, 2008, to city council members about Zandamela, a black man who was sworn in as a councilman the previous evening. "Our city government must be corrupt to have this (derogatory term) as an elected official," read the message in part. The message included four slurs and was signed, "Sincerely, a (derogatory term) hater." 'Anonymous, cowardly'

After Mayor Mike Ciraulo wrote back and told the council to ignore the message from "battleground anonymous," Ciraulo received a second message calling him a "stupid (derogatory term) lover." ...

What about the First Amendment? Well, first, "Defense attorney Jon McMullen had considered arguing that the comments were protected as free speech, but facing the possibility of federal charges — which could have netted Reinhold more than a year in prison — his client decided to plead guilty." As reported in this earlier article, "Lawyers at the U.S. Attorney's Office became interested in the case and on Friday wrote to Reinhold's defense attorney, Jon McMullen, that they would let the case rest if Reinhold changed his plea.... 'Basically, they said, 'If you fight it down here, win lose or draw, we'll charge in federal court,'' McMullen said."

And, second, "'It's not free speech,' the judge said Monday. 'It's anonymous, it's cowardly, it's hateful and it was racist.'" What is that supposed to mean? There's no anonymous speech exception to the First Amendment, no cowardly speech exception, no hateful speech exception, and no racist speech exception. Perhaps this was quoted out of context, and the context somehow radically changes the judge's meaning. But if it was quoted in context, then the judge's rationale strikes me as very wrong.

Finally, for what strikes me as the much better view on the First Amendment issue, see U.S. v. Popa, the D.C. Circuit decision cited and briefly discussed in this earlier post.

UPDATE: I should note that I assume the premise of the prosecution is that Zandamela was one of the recipients, which is what would make the e-mail even theoretically actionable as "cyberstalking." If the premise was that the defendant was sending offensive messages about a city councilman to other city councilmen, then the prosecution is even more outrageous. And I should acknowledge, on further thinking about this, that the state statute seems to allow such an unconstitutional result, because it provides (emphasis added),

(1) A person is guilty of cyberstalking if he or she, with intent to harass, intimidate, torment, or embarrass any other person, and under circumstances not constituting telephone harassment, makes an electronic communication [including e-mail] to such other person or a third party:

(a) Using any lewd, lascivious, indecent, or obscene words, images, or language, or suggesting the commission of any lewd or lascivious act;

(b) Anonymously or repeatedly whether or not conversation occurs; or

(c) Threatening to inflict injury on the person or property of the person called or any member of his or her family or household....

Again, if the prosecution is premised solely on the messages to third parties then this is a frightening result: It is completely unmoored from the premise of normal telephone harassment law (which is troublesome enough as to government officials, as Popa discusses), and it takes the view that it's a crime to send anonymous messages to government officials about other government officials "with intent to harass, intimidate, torment, or embarrass" the subject.

A common argument against the constitutionality of Prop. 8 was to hypothesize what would happen if voters overturn other constitutional rights decisions, or for that matter repeal expressly secured constitutional rights:

[U]nder the majority's view, it is not clear what sorts of state constitutional constraints limit the power of a majority of the electorate to discriminate against minorities. As petitioners point out, “imagine if Perez v. Sharp, 32 Cal.2d 711 (1948), striking down California's ban on interracial marriages, had been decided on state constitutional grounds rather than federal constitutional grounds. And imagine if a bare majority had attempted to overturn that landmark ruling by enshrining the ban into the Constitution.” Other equally unattractive hypotheticals suggest themselves. Under the majority's reasoning, California's voters could permissibly amend the state Constitution to limit Catholics' right to freely exercise their religious beliefs (Cal. Const., art. I, § 4), condition African-Americans' right to vote on their ownership of real property (id., § 22), or strip women of the right to enter into or pursue a business or profession ( id., § 8). While the federal Constitution would likely bar these initiatives, the California Constitution is intended to operate independently of (art. I, § 24), and in some cases more broadly than (see, e.g., Fashion Valley Mall v. National Labor Relations Board (2007) 42 Cal.4th 850, 857-858), its federal counterpart. The majority's holding essentially strips the state Constitution of its independent vitality in protecting the fundamental rights of suspect classes. And if the majority does not avow that such broad constitutional changes could be made by amendment, but only more “limited” ones, then I disagree with such an implicit distinction. As discussed, denying gays and lesbians the right to marry, by wrenching minority rights away from judicial protection and subjecting them instead to a majority vote, attacks the very core of the equal protection principle.

And these hypotheticals could likewise be raised not just as to the initiative amendment process, but also the legislative revision process, since one can imagine the same voters' electing enough legislators who would support those voters' preferences. (To be sure, that isn't politically likely, but neither are the other hypotheticals particularly likely; they certainly haven't been enacted in the past, even in times in which they might have been politically more plausible.) So Justice Moreno's argument can't easily be cabined in a way that would apply to the narrow question of what's an amendment and what's a revision -- it would equally cast into doubt (or not cast into doubt) the people's power to amend the constitution through legislative proposal or through a constitutional amendment.

But it seems to me the answer to this is clear: Those amendments would indeed be legally permissible changes to the California Constitution. (One might distinguish limitations on voting rights, on the grounds that they would entrench themselves, by stripping some people of the legal right to repeal those amendments; but wherever such a constitutional principle might or might not reside, that doesn't apply to same-sex marriage, or many other examples.)

They would be immoral. In extreme cases, they might constitute a sufficient moral justification for revolution (a matter I flag simply because the possibility can't be denied, and because of course our own U.S. Constitution is built in large part on a revolution against the existing order, plus likely a slightly later, peaceful and broadly accepted, coup against the existing order). They would violate the U.S. Constitution, and thus would be struck down on those grounds. But under the California Constitution, it seems to me that they should be understood simply as the sovereign changing the Constitution in a way that's very bad but that is consistent with that constitution.

In any event, what makes those provisions wrong is not that they are legally "revisions" rather than "amendments" and thus illegal. What makes them wrong is that they are morally wrong and thus immoral. But ultimately that judgment about what is morally wrong, as I mentioned, is under the California Constitution left to the sovereign people, and not the sovereign's servants in the state supreme court.

Justice Moreno argues that Prop. 8 is a revision, not an amendment, and therefore must be implemented through a legislative proposal or a constitutional convention, and not by initiative. His rationale is that "a transfer of the authority to protect the equal rights of a suspect class away from the judiciary to an electoral majority" is a "kind of change in the countermajoritarian nature of the equal protection clause" that "is the type of fundamental alteration that can be done only through a constitutional revision." And his arguments rests heavily on tradition: the courts' "traditional constitutional function of protecting persecuted minorities from the majority will," equal protection being "one of the core values upon which our state Constitution is founded," "the guarantee of equal treatment hat has pervaded the California Constitution since 1849," and the like.

But the trouble is that what constitutes equal rights, equal protection, and equal treatment -- and on the other side, "persecut[ion]" of minorities rather than legitimately different treatment of different kinds of behavior -- is not self-defining. Up until 2008, the California Constitution had not been read as treating the opposite-sex-only marriage rule as unconstitutional. Up until the 1990s, no state constitution in America had been. Certainly the drafters of the California Constitution to whose handiwork Justice Moreno appeals did not believe that opposite-sex-only marriage rules are unconstitutional. They had a different view of what constitutes a denial of equal rights than does Justice Moreno. Likewise, the voters who enacted Prop. 8 have a different view from Justice Moreno, and a view that is more in common with the truly traditional understanding of the substantive scope of equal protection.

Justice Moreno does acknowledge "that the right of gays and lesbians to marry in this state has only lately been recognized. But that belated recognition does not make the protection of those rights less important. Rather, that the right has only recently been acknowledged reflects an age-old prejudice that makes the safeguarding of that right by the judiciary all the more critical." But again the judgment of what constitutes "prejudice" and what constitutes a legitimate basis for different treatment is precisely what the voters and the Justices disagree about.

Now in our constitutional tradition, the courts are indeed the final expositors of a constitution in the sense that they can strike state statutes down as unconstitutional. If the legislature disagrees with the courts, or if the voters enacting mere statutes disagree with the courts, then the courts' interpretation of the constitution prevails. (The initiative process in California, and in some other states, lets voters enact proposals as statutes if they so wish, and with lower petition thresholds than those required for constitutional amendments.)

But when the voters who are trying to amend the Constitution take a different view of the proper scope of constitutional principles -- even very important principles such as equality -- and a different view of the line between "persecution" and proper recognition of what they see as real differences, then it seems to me that the view of the sovereign (the people), not of the sovereign's servants (the Justices), should prevail. And though the Constitution prescribes that the will prevails only when it uses certain channels, and the channel of the initiative is usable only for "amendments" rather than "revisions," I see no basis for importing the Justices' personal views of "equality" and "persecution" into the amendment/revision line. (The majority expresses that well, I think.)

Talk of constitutional provisions' being deliberately "countermajoritarian" strikes me as unhelpful here. First, the Constitution itself is both a countermajoritarian document and a majoritarian one; the initiative amendment provision is itself a designedly majoritarian feature. Second, the countermajoritarianism is itself a feature of certain constitutional provisions, which are just as subject to constitutional amendment, it seems to me, as are the majoritarian provisions.

And third, the question in such matters is always which majority should prevail -- the majority of Justices on the state supreme court, or the majority of voters voting on the constitutional amendment. When the majority of the Justices are interpreting the state constitution in order to evaluate statutory provisions, they can appeal not just to their own majority view but to the authority of the Constitution. But when the majority of the Justices disagrees with the views of voters who are trying to amend that very same Constitution, such an appeal no longer works. All the Justices can say is that they are protecting the rights of the minority, but the whole point of the dispute is that there's disagreement about what those rights should be.

That's why I think the majority's view was correct here. The revision/amendment line is indeed part of the state constitution, and it should be enforced. But there's no justification for defining the line by reference to the judges' own views of what equality really means, when the majority of the voters who are trying to amendment the constitution disagrees with majority of the judges.

A few observations:

1. This decision is based solely on the California Constitution. Within the federal system, the California Supreme Court's view of the meaning of the California Constitution is final, and the U.S. Supreme Court has no jurisdiction to revisit it. So there can be no federal review of the question whether Prop. 8 violates the California Constitution.

2. Supporters of same-sex marriage rights can of course argue to the U.S. Supreme Court that the U.S. Constitution mandates recognition of same-sex marriage, in all states and under federal law. But it seems unlikely that the Court would accept such an argument at this point, and in any case this case is not a good vehicle for that, since the decision below was all about the California Constitution. (I'm not sure that federal constitutional arguments were even made by the challengers, but in any case they weren't considered by the Court.)

3. Supporters of same-sex marriage rights can also argue that the Full Faith and Credit Clause requires recognition of out-of-state same-sex marriages, both in California and elsewhere. I'm not an expert on the subject, but I my sense is that this argument will fail, at least before the current U.S. Supreme Court and probably also before many state and federal courts (at least ones that aren't willing to find a constitutional right to same-sex marriage in the first place).

4. Finally, supporters of same-sex marriage rights can also try to put on the ballot an amendment that would repeal Prop. 8, and would amend the California Constitution to actually recognize a right to same-sex marriage (or to authorize the normal legislative process to enact legislation recognizing such a right). My sense is that such a proposal will indeed soon pass, perhaps not in the next election cycle but likely within the next 10 to 15 years, if I'm reading social trends correctly.

On my initial quick read, it seems to me that the California Supreme Court's cases (1) recognizing a right to same-sex marriage under the California Constitution, and (2) today, recognizing that Proposition 8 validly amended the Constitution and thus abrogated the right are excellent examples for any discussion -- in class or otherwise -- about popular sovereignty.

Three Justices reached a result different from the one that they had initially reached, based on their judgment that the people's views prevail over the Justices'. And they rebutted (in my view persuasively, but in any event clearly and informatively) the arguments to the contrary, both arguments focused on the revision vs. amendment question and arguments focused on the people's supposed legal inability to alter supposedly "fundamental" or "inalienable" rights. On the other side, there was able briefing to the contrary, plus Justice Moreno's partial dissent (which I've only skimmed at this point, though I'll read it later today). Put together, this seems to me a great case study of the recurring debates about popular sovereignty, constitutionalism, the role of courts, and more broadly the mixed majoritarian and antimajoritarian nature of American constitutions.

I again think the court's reasoning is quite correct (emphasis in original, some paragraph breaks added):

In his briefing before this court, the Attorney General agrees with our conclusions that Proposition 8 constitutes a constitutional amendment rather than a constitutional revision, and that the measure does not violate the separation of powers doctrine. The Attorney General, however, advances a novel, alternative theory under which he claims Proposition 8 should be held invalid. Relying largely on the circumstance that article I, section 1 of the California Constitution characterizes certain rights as “inalienable,” the Attorney General maintains that “Proposition 8 should be invalidated even if it is deemed to amend the Constitution because it abrogates fundamental rights protected by article I without a compelling interest.” ...

[But] the “inalienable” nature of a constitutional right never has been understood to preclude the adoption of a constitutional amendment that limits or restricts the scope or application of such a right. As noted above, from the beginnings of our state constitutional history, the right of the people “to alter or reform” the provisions of the Constitution itself has been understood to constitute one of the fundamental rights to which article I, section 1 refers, and California's 1849 Constitution enshrined this right as an integral part of the original Declaration of Rights in former article I, section 2, which provided: “All political power is inherent in the people. Government is instituted for the protection, security, and benefit of the people; and they have the right to alter or reform the same, whenever the public good may require it.”

Indeed, the drafters of the 1849 Constitution, in their message submitting the proposed Constitution to the people of California, expressly described the people's right to alter or reform the Constitution as an “inalienable right.” In like manner, when the people's authority to propose and adopt constitutional amendments by initiative was added to the California Constitution in 1911, the constitutional provision spoke of the initiative “not as a right granted the people, but as a power reserved by them.”

Accordingly, there is no basis for suggesting that the inalienable rights set forth in article I, section 1, and the other provisions of the Declaration of Rights, are of a higher order than -- and thus exempt from -- the people's right to “alter or reform” the Constitution through either the legislative or the initiative constitutional amendment process. Indeed, a review of the current version of the constitutional provisions contained within article I's Declaration of Rights demonstrates that modification of such rights through the amendment process has occurred throughout our state's history.

In urging this court to confer upon the “inalienable rights” terminology of article I, section 1 a much more sweeping and far reaching meaning than it traditionally has borne, the Attorney General cites selected excerpts from a number of mid-19th-century opinions that gave voice to the natural-rights jurisprudence that was common in that era. As pointed out in the response filed by interveners, however, the expansive natural-rights jurisprudence of that time long has been discredited and, moreover, even the cited jurists never suggested that courts possess the authority to invalidate an explicit constitutional amendment, adopted through a constitutionally prescribed procedure, on the ground that the amendment is inconsistent with the scope of a right previously embodied in the Constitution. As discussed at length above, on numerous occasions in the past this court's interpretation of the fundamental constitutional protections accorded by the state Constitution to the “life and liberty” of those accused of crime has been modified by constitutional amendments proposed and adopted through the initiative process, and the constitutional validity of those amendments repeatedly has been sustained in our prior decisions. In short, the Attorney General's position finds no support in the governing California authorities.

In defending his argument, the Attorney General emphasizes that he “is duty bound to uphold the whole of the Constitution, not only the People's reservation of the initiative power, but also the People's expression of their will in the Constitution's Declaration of Rights.” When we examine the entirety of the California Constitution, however, we find nothing that exempts article I, section 1 -- or any other section of the Constitution -- from the amendment process set forth in article XVIII.... [W]e would exceed the well-established and time-honored limits of the judicial role were we to take it upon ourselves to fashion such a restriction upon the present and future right of the people to determine the content of the Constitution that governs our state.

[Footnote: As one legal commentator has explained: “To empower the courts not simply to review the procedures whereby amendments were adopted but also to void amendments on the basis of their substantive content would surely threaten the notion of a government founded on the consent of the governed.” (Viles, The Case Against Implicit Limits on the Constitutional Amending Process in Responding to Imperfection (Levinson edit.1995) 191, 198; see also Tribe, A Constitution We Are Amending: In Defense of a Restrained Judicial Role (1983) 97 Harv. L.Rev. 433, 442 [“allowing the judiciary to pass on the merits of constitutional amendments would unequivocally subordinate the amendment process to the legal system it is intended to override and would thus gravely threaten the integrity of the entire structure”].)]

Under the California Constitution, the initiative can be used for constitutional "amendments" but not constitutional "revisions"; see this post for more, including the constitutional text that strongly suggests this. Here's the California Supreme Court's explanation for why Prop. 8 is a constitutionally permissible "amendment" and not an impermissible "revision" (all emphases in original):

“[O]ur analysis in determining whether a particular constitutional enactment is a revision or an amendment must be both quantitative and qualitative in nature. For example, an enactment which is so extensive in its provisions as to change directly the ‘substantial entirety’ of the Constitution by the deletion or alteration of numerous existing provisions may well constitute a revision thereof. However, even a relatively simple enactment may accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision also. In illustration, the parties herein appear to agree that an enactment which purported to vest all judicial power in the Legislature would amount to a revision without regard either to the length or complexity of the measure or the number of existing articles or sections affected by such change.” ...

From a quantitative standpoint, it is obvious that Proposition 8 does not amount to a constitutional revision. The measure adds one 14-word section to article I -- a section that affects two other sections of article I by creating an exception to the privacy, due process, and equal protection clauses contained in those two sections as interpreted in the majority opinion in the Marriage Cases. Quantitatively, Proposition 8 unquestionably has much less of an effect on the preexisting state constitutional scheme than virtually any of the previous constitutional changes that our past decisions have found to constitute amendments rather than revisions....

[As to the qualitiative prong of the amendment/revision analysis,] the numerous past decisions of this court that have addressed this issue all have indicated that the type of measure that may constitute a revision of the California Constitution is one that makes “far reaching changes in the nature of our basic governmental plan,” or, stated in slightly different terms, that “substantially alter[s] the basic governmental framework set forth in our Constitution.” ... Proposition 8 works no such fundamental change in the basic governmental plan or framework established by the preexisting provisions of the California Constitution -- that is, “in [the government's] fundamental structure or the foundational powers of its branches.” ...

(Show the rest of the excerpt.)

Petitioners contend, however, that even if Proposition 8 does not make a fundamental change in the basic governmental plan or framework established by the Constitution, the measure nonetheless should be found to constitute a revision because it allegedly “strike[s] directly at the foundational constitutional principle of equal protection ... by establishing that an unpopular group may be selectively stripped of fundamental rights by a simple majority of voters.” Petitioners' argument rests, initially, on the premise that a measure that abrogates a so-called foundational constitutional principle of law, no less than a measure that makes a fundamental change in the basic governmental structure or in the foundational power of its branches as established by the state Constitution, should be viewed as a constitutional revision rather than as a constitutional amendment. Petitioners suggest that their position is not inconsistent with our past amendment/revision decisions, on the theory that none of those decisions explicitly held that only a measure that makes a fundamental change in the state's governmental plan or framework can constitute a constitutional revision....

[But a]lthough a principal purpose of all constitutional provisions establishing individual rights is to serve as a countermajoritarian check on potential actions that may be taken by the legislative or executive branches, our prior decisions ... establish that the scope and substance of an existing state constitutional individual right, as interpreted by this court, may be modified and diminished by a change in the state Constitution itself, effectuated through a constitutional amendment approved by a majority of the electors acting pursuant to the initiative power....

[C]ontrary to petitioners' claim that a determination that Proposition 8 constitutes a constitutional amendment would represent a dramatic change in existing state constitutional principles, it is petitioners' proposal that radically would alter the long and firmly established understanding of the amendment/revision distinction embodied in the California Constitution. In basing their argument entirely on the circumstance that Proposition 8 has the effect of diminishing one aspect of a fundamental right of a group that this court has determined properly should be considered a “suspect class” for purposes of the state constitutional equal protection clause, petitioners in essence ask this court to read into the amendment/revision distinction embodied in the California Constitution a number of the distinctive elements of the state constitutional equal protection jurisprudence that have been developed and applied by this court in recent years. As we have seen, however, neither the history of the amendment/revision distinction in the California Constitution since its inception in 1849, nor the numerous cases that have applied that distinction, provide support or justification for such a radical transformation of the meaning and scope of the amendment/revision dichotomy.

That petitioners' proposal would mark a sharp departure from this court's past understanding of the amendment/revision dichotomy is further demonstrated by the circumstance that under petitioners' approach, the people would have the ability -- through the initiative process -- to extend a constitutional right to a disfavored group that had not previously enjoyed that right, but the people would lack the power to undo or repeal that very same extension of rights through their exercise of the identical initiative process. Thus, for example, had this court rejected the constitutional challenges to the existing marriage statutes in its decision in the Marriage Cases, and had the people responded by adopting an initiative measure amending the privacy, due process, and equal protection provisions of the state Constitution to guarantee same-sex couples equal access to the designation of marriage, that measure would be viewed as a constitutional amendment that properly could be adopted through the initiative process. But if an initiative measure thereafter was proposed to repeal those recently adopted changes to the state Constitution, that measure, under petitioners' approach, would be designated a constitutional revision, and the people would be powerless to adopt that change through the initiative process. Again, neither the history of the provisions governing the making of changes to the California Constitution, nor the many past cases interpreting and applying those provisions, support petitioners' assertion that the amendment/revision distinction properly should be understood as establishing such a “one-way street” or as mandating such a seemingly anomalous result....

In advancing the claim that Proposition 8 should be characterized as a constitutional revision rather than as a constitutional amendment, petitioners also rely heavily upon the circumstance that the measure was proposed directly by the people through the initiative process rather than by the Legislature, implying that under the state Constitution a measure proposed by initiative is more “constitutionally suspect” than would be a comparable measure proposed by the Legislature. Past California cases, however, provide no support for the suggestion that the people's right to propose amendments to the state Constitution through the initiative process is more limited than the Legislature's ability to propose such amendments through the legislative process. To the contrary, the governing California case law uniformly emphasizes that “‘it is our solemn duty jealously to guard the sovereign people's initiative power, “it being one of the most precious rights of our democratic process”’” and that “‘we are required to resolve any reasonable doubts in favor of the exercise of this precious right.’” The provisions of the California Constitution draw no distinction between the types of constitutional amendments that may be proposed through the initiative process as compared to those that may be proposed by the Legislature, and our past cases indicate that no such distinction exists.

(Hide most of the excerpt.)

Again, strikes me as quite correct.

Strikes me as exactly right:

[N]o authority supports the Attorney General’s claim that a constitutional amendment adopted through the constitutionally prescribed procedure is invalid simply because the amendment affects a prior judicial interpretation of a right that the Constitution denominates “inalienable.” The natural-law jurisprudence reflected in passages from the few early judicial opinions relied upon by the Attorney General has been discredited for many years, and, in any event, no decision suggests that when a constitution has been explicitly amended to modify a constitutional right (including a right identified in the Constitution as “inalienable”), the amendment may be found unconstitutional on the ground that it conflicts with some implicit or extraconstitutional limitation that is to be framed and enforced by the judiciary. Although the amending provisions of a constitution can expressly place some subjects or portions of the constitution off-limits to the amending process — as already noted, some state constitutions contain just such explicit limits — the California Constitution contains no such restraints. This court would radically depart from the well-established limits of the judicial function were it to engraft such a restriction onto the Constitution in the absence of an explicit constitutional provision limiting the amendment power....

In a sense, petitioners’ and the Attorney General’s complaint is that it is just too easy to amend the California Constitution through the initiative process. But it is not a proper function of this court to curtail that process; we are constitutionally bound to uphold it. If the process for amending the Constitution is to be restricted — perhaps in the manner it was explicitly limited in an earlier version of our state Constitution, or as limited in the present-day constitutions of some of our sister states — this is an effort that the people themselves may undertake through the process of amending their Constitution in order to impose further limitations upon their own power of initiative.

The California Supreme Court justified its earlier decision recognizing same-sex marriages by reference to the California Constitution, which in turns draws its authority from having been enacted by the people. Whether that decision was or wasn't a sound interpretation of the California Constitution, an interpretation of the California Constitution is what it purported to be.

The constitutional provisions that the people enacted the people may likewise lawfully amend. Perhaps the amendment may be morally wrong, but it is legally authoritative (unless it violates some superior legal rule, such as the U.S. Constitution, but recall that the debate in this case has been about rights supposedly secured by the California Constitution).

More on the amendment/revision question, I hope, as I read further.

The discussion prompts me to reprise a couple of items I posted in the very first month of this blog on the subject:

1. Note Justice Cardozo's Hispanic surname, a traditional way of testing Hispanic status; actually, I think the name is Portuguese, but if it's good enough for the U.S. government, it's good enough for me: Title 49, section 26.5 of the Code of Federal Regulations (the definition that's used in the contracting race preference programs administered by the Department of Transportation) defines "Hispanic Americans" as

persons of Mexican, Puerto Rican, Cuban, Dominican, Central or South American, or other Spanish or Portuguese culture or origin, regardless of race.

There's no doubt, to my knowledge, that Cardozo was indeed of Spanish or Portuguese origin; in fact, a recent biography describes the shaping experiences of Cardozo;s youth as including participation in a leading Spanish-Portuguese cultural organization. True, his family probably left the Iberian Peninsula over 350 years before his birth, but that's true of many Hispanics as well. And he likely had no American Indian blood, but that's true of many Hispanics, too.

At the same time, I can certainly understand both why many Hispanics would be enthusiastic about having a Hispanic appointed to the Court, and why they wouldn't count Cardozo as one of them: Ethnicity tends to be defined in practice by felt cultural bonds, and not by Code of Federal Regulations definitions.

2. My friend Tom Waldman asked whether Cardozo might not qualify as Latino (as opposed to Ladino, I take it).

But that presupposes a definition of Latino that's different from Hispanic, and that would exclude Cardozo; I don't think there really is that settled a definition. I could find no such definition in the Code of Federal Regulations. The closest I could find is a definition of "Hispanic or Latino" in 45 CFR 1355 app. A, which likewise turns on whether a person "is of Mexican, Puerto Rican, Cuban, Central or South American origin, or a person of other Spanish cultural origin regardless of race" — this might exclude Cardozo because I suspect he's of Portuguese cultural origin, but that would be a really funny way of defining Latino. After all, the Portuguese might be seen as not Hispanic, but surely they're just as Latino as the Spaniards. (UPDATE: Justin Miller points out: "Brazilians mostly speak Portuguese (the country was Portugal's main South American colony) and it's easily the most-populated country in South America. It would be hard then to neglect Brazilians' status as Latinos. If Brazilians are counted as Latinos, why not then those from Portugal itself? Language seems to be a central tenant of identifying Latino ethnicity and I think this simple case makes it pretty clear Cardozo was the first Latino justice.")

My New Shorter Oxford does define Latino as "A Latin American inhabitant of the United States," which would indeed exclude Cardozo — but would equally exclude all Americans of merely Spanish, as opposed to Latin American, extraction. This might be a sensible definition, but it's not the one in the Code of Federal Regulations.

Though, wait! What about Antonin Scalia, a Justice some of whose ancestors might have actually come from Latium itself? Yes, I know, etymology doesn't equal meaning; but it's still fun to play with this.

3. So the bottom line: There's no doubt that many Hispanics might see Judge Sotomayor as one of them in a way that they don't see Justice Cardozo as one of them. There's nothing "incorrect" about that; it's a matter of felt shared identity, which is defined by actual practices and not by scientific or often even legal definitions. But if one does look at legal attempts to try to capture Hispanic identity as a legal category, Justice Cardozo might well have qualified (which may say more about the weakness of such legal attempts than about anything else).

So reports the San Francisco Chronicle, reporting that the decision is 6-1. (Thanks to How Appealing for the pointer.) I can't access the opinion right now at the California Supreme Court site, presumably because of high traffic, but I hope to comment on it as soon as I read it. UPDATE: Got the opinion now, thanks to Chris Geidner; hope to blog about it soon.

In the meantime, good advice for the pro-same-sex-marriage forces from Chris Geidner (LawDork):

All weekend, Twitter and the blogosphere have been abuzz with the Day of Decision rallies planned across California and the nation. Its organizers, who include Robin Tyler and Andy Thayer, state: “[I]f the court rules against us, make sure that our angry voices are heard around the nation. Anger at denying an entire group of people our civil rights is perfectly legitimate and appropriate.”

This reasoning is incomplete, misguided and horribly short-sighted, and it is my hope that marriage equality leaders like Evan Wolfson, Mary Bonauto and Andrew Sullivan would concur.

First, this is not a ruling about whether marriage equality is correct or just. This is a ruling about whether the California Constitution allows a measure like Proposition 8 to be voted into the Constitution by the people. Even if there is some overriding federal claim that marriage equality is guaranteed by the U.S. Constitution, it was not raised by the parties here....

Third, and most simply, this is not the righteous anger exhibited this past fall. This decision is likely to be a complex one turning one the intricacies of California constitutional law, as well as its common law history and principles of equity. That is not protest-worthy, however, so the decision will have to be simplified to the point of being unrecognizable in order to provide the tinder sought by the organizers to light the fire of protest in their attendees’ spirits....

My near-6-year-old is wild about building what he calls "machines" out of Legos, blocks, boxes, and everything else. I thought it would be fun if he could build some actual machines as well as the imaginary ones. Lego's Mindstorms robots look fun, but they are said to be for age 9 and above, and I'm not sure whether my boy (let's call him "Ben" for convenience) will have the attention span to enjoy them, even with my help. And while I'd be happy to do the programming, with him watching and (I hope) learning, I thought he might enjoy something that he could quickly do entirely by himself, at least as an option.

Any suggestions? Any experience you folks have had yourself with your 6- or 7-year-olds? Many thanks!