(from the Conlawprofs Listserv)
Sandy wrote:
"I fail to see why we should take any more seriously the Supreme Court's musings about the meaning of..."
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Musings!
Of the Supreme Court of the United States of America.
Harumph.
I suppose that next you'll be suggesting they're making it up as they go along!
For shame...
...he wrote, hanging his head, laughing.
-rs
sfls
Sanford Levinson wrote:
> I note for the record that the Court in a 20's case--I obviousy forget the name right now--stated quite clearly, though in dicta, that a constitutional amendment had to be ratified "contemporaneously."
This didn't stop all but a few cranks (like myself) from questioning the validity of the so-called 27th Amendment upon Michigan's ratification in 1992, a mere 203 years after its proposal by Congress.
I fail to see why we should take any more seriously the Supreme Court's musings about the meaning of "Legislature," especially when the closest-in-time dictionary, the 1786 Eighth edition of Samuel Johnson's Dictionary, defines "legislature" as the "highest law making body."
He, like the framers, was totally unaware of the possibility that later developments could make the "highest law making body" direct rule by the people through referendum.
> sandy
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[Prof. Levinson is certainly one of the leading Constitutional Law scholars, and is imbued with one of the semi-sweetest senses of humor around.
His July 2003 Village Voice article putting into historical perspective the Court's landmark Lawrence and U. of Michigan decisions is a wonderful example of Con-Law scholarship, here.
A student with the lights on asked whether Three-Strikes was constitutional and we discussed it a few days ago here.
The question came up during the context of studying Separation of Powers. The three coordinate branches (L, E, & J) are supposed somehow to coordinate without stepping on each other's toes too badly. How's that for a Con-Law principle?
But that's what it is.
The details are up to you to figure out.
Don't ask me, I'm just the perfesser.
Three Strikes was enacted by popular initiative.
Governor Gray Davis was replaced by popular referendum.
How powerful are initiative and referendum as legislative means?
Powerful, obviously, but can they be unconstitutional?
They can if they enact on more than one subject at a time if I recall Prop. 8 correctly, not that Prop. 8 was declared unconstitutional. Prop. 8 (1981 or 1982) supposedly outlawed plea bargaining in serious or violent felonies except under narrow circumstances that have eaten up the rule, of course, such as that the DA has 'problems.'
All DAs have problems.
That's why we have DAs.
To deal with them.
Are the resulting measures subject to the same constitutional restrictions as statutes enacted by the state legislature? (We don't have federal initiative and referendum).
Can the voters, in the exercise of popular sovereignty, mush together activities of two or more of the three branches of state government?
National voters could by enacting a constitutional amendment. It seems illogical to declare a constitutional amendment unconstitutional. If the people vote for it, they've got it right? But suppose they repeal freedom of speech but leave freedom to petition. THAT would be inconsistent, as petition is a mode of speech.
Do state constitutions follow the same rules as the federal insofar as structure of government is concerned?
Pop sovereignty seems pretty strong to me.
What about if the enactment is irrational, then what?
That fails even the most deferential mode of review.
I'm going to have to talk to that student...