Archive for November, 2008


George W. Bush

November 29, 2008

“I would like to be a person remembered as a person who, first and foremost, did not sell his soul in order to accommodate the political process. I came to Washington with a set of values, and I’m leaving with the same set of values. And I darn sure wasn’t going to sacrifice those values.”

– President G.W. Bush


Michael Steele on the “Death” of the GOP

November 26, 2008

Bruce Wayne/Batman may have died today, but Michael Steele feels that the reported death of the GOP is over exaggerated.  In an article written by the GOP Chair hopeful, Steele feels the GOP is still alive despite the dire press Republicans received after the Nov. 4th defeat. 

Steele points out the following facts regarding the 2008 Presidential elections:

the electorate shifted only about 4 points from Republicans to Democrats since 2004. That year, George W. Bush took 48 percent of the vote against Barack Obama’s approximately 52 percent in this election. Now, don’t get me wrong, that 4-point shift produced the best vote tally for a national Democrat since Lyndon B. Johnson. 

But the admittedly major defeat for the home team that resulted from a mere 4-point shift need not send Republicans to the locker room just yet. The fact is that despite dire predictions to the contrary, turnout in 2008 was about the same as it was in 2004. The real problem was that Republican turn-out pitched down while Democrat turnout surged. 

Any fool can see that the GOP lost this November because much of the Conservative base did not stand behind McCain as a candidate who would represent their core beliefs.  However, it is going to take more than “any fool” to create a plan to revive Republican/Conservative prominence in this great country.  What impresses me about Steele are his actual and palpable plans to increase Republican turnout and sway moderate voters.  For example:

Return to timeless Republican principles.  Retool our message, but base it on those proven conservative principles for which our party has always stood: Our freedom is from God, not government. Our prosperity comes from a free people in a free market, not overtaxing, free-spending bureaucrats. We celebrate and protect life, born and unborn. And our best hope for a brighter future is in the empowerment of individuals and families, not in the constraints imposed by a bloated bureaucracy. 

Organize in every state. We need a new approach that assures Republicans play in every state; take nothing for granted. We may not win everywhere we play, but we certainly won’t win if we don’t play everywhere we can. 

Appeal to the forgotten middle class. Obama beat us in the cities, suburbs and exurbs. We beat him in the rural areas. Our message of economic growth, lower taxes, more accountability in education, personal responsibility and fiscal restraint will appeal, but we have to refine it and do a lot better job of getting it out. 

Build a broader coalition. Obama’s coalition consisted of a broad cross-section of Americans. Young voters went for Obama 68 percent to 30 percent. He beat us among Hispanics by a 2-1 ratio. He won the votes of Asians, women, African-Americans and seniors. This doesn’t have to be the case. We have the message, but we have to improve our credibility with these voters. 

Stop the blame game. We have to stop trying to lay blame for our losses. It’s embarrassing to see what unnamed McCain aides are saying about Sarah Palin. Worse, it’s not fair, relevant or productive. Instead, we have to recognize we have all contributed to the problem and it will take us all — working together — to repair it. 

Use new communication tools. Not only was our message stale, the means by which we’ve conveyed our message has been lackluster — at best. Television advertising is great, but it’s not enough in this new age of Facebook, YouTube, bloggers and Twitter. In addition to updating our message, we have to update the means by which we communicate it. 

…let’s stop telling Americans what we’re against and instead articulate a compelling vision of what we’re for, how we’ll lead and where we want to go. 

We should be assisting in all of these things to further our cause.  A cause based on minimal government intervention, freedom, economic stability, liberty, homeland security, and fiscal responsibility.  Many of our Republican representatives have swayed from these core values.  Let us find, support, and elect those who believe as we do.  May we do what we can to help our local races, no matter how large or small.  Together we can do great things.



The Obligatory PC Holiday Post

November 25, 2008

Every year around this time, we as a nation are reminded how weak minded we have become.  Why do we allow this country to be bullied by a small slice of the population?  By small slice I mean this:  If there was a pie chart for what people would do if they found $1 million, the slice which we allow to shove their PC agenda down our throats would be equal to the “Hand the money over to the police” portion.  In the mean time, the “Keep It” portion is forced to configure its Holiday Cheer around the “feelings” of the few.  (Thanks Mitch Hedberg, may you Rest in Peace). 

I read two stories which absolutely drove me up the wall this morning; one in California and the other in Florida.

California via The LA Times and MM

For decades, Claremont kindergartners have celebrated Thanksgiving by dressing up as pilgrims and Native Americans and sharing a feast. But on Tuesday, when the youngsters meet for their turkey and songs, they won’t be wearing their hand-made bonnets, headdresses and fringed vests.

Parents in this quiet university town are sharply divided over what these construction-paper symbols represent: A simple child’s depiction of the traditional (if not wholly accurate) tale of two factions setting aside their differences to give thanks over a shared meal? Or a cartoonish stereotype that would never be allowed of other racial, ethnic or religious groups?

“It’s demeaning,” Michelle Raheja, the mother of a kindergartner at Condit Elementary School, wrote to her daughter’s teacher. “I’m sure you can appreciate the inappropriateness of asking children to dress up like slaves (and kind slave masters), or Jews (and friendly Nazis), or members of any other racial minority group who has struggled in our nation’s history.”

 What?  Huh? A couple of things go through my mind after reading that drivel

(1)If you can name the holiday where we celebrate the killing of Jews and the enslavement of Africans, you will be the first person I will invite to speak on the matter.  These children want to celebrate a holiday and reenact an actual historical event; where the Indians and Pilgrims sat down together.  Would this woman suggest a school play of Anne Frank not dress up the soldiers in Nazi uniforms?  Why stop there?  Let’s keep scrubbing it clean.  Anne Frank wasn’t actually Jewish, she was an agnostic.  The Germans were just a little confused; nothing a public education couldn’t fix. 

(2) Ms. Raheja, you mentioned towards the end of your quote “members of a racial minority.”  However, in the 1620’s the colonials were a stark minority on this Continent.  Additionally, who said all colonials wore black hats with gold buckles, black knickers with white stockings, and black leather shoes.  Why don’t you mention that stereotype?

More importantly, these are kindergarten students who want to have a Thanksgiving feast and continue a harmless tradition.  This woman and four other parents are pretty much the only complainers out of four kindergarten classes who get together once a year to celebrate Thanksgiving.  The School Board caved to their minority request, however parents plan on sending their kids in the costumes anyway.  Good for them.

If you want to email Michelle Raheja, here is her email address.

Florida via Drudge and

FGCU (Florida Gulf Coast University) administration has banned all holiday decorations from common spaces on campus and canceled a popular greeting card design contest, which is being replaced by an ugly sweater competition. In Griffin Hall, the university’s giving tree for needy preschoolers has been transformed into a “giving garden.” 

Thanks Al Gore.

Public institutions, including FGCU, often struggle with how best to observe the season in ways that honor and respect all traditions,” President Wilson Bradshaw wrote in a memo to faculty and staff Thursday. “This is a challenging issue each year at FGCU, and 2008 is no exception. While it may appear at times that a vocal majority of opinion is the only view that is held, this is not always the case.”

FGCU received 44 written complaints…of a student body of over 8,000 students.  So roughly .55% of the student body is now going to dictate what can be put up in Student Unions and other common areas around campus.  Why is the President bowing down to such a minority?  The PC machine has slowly become invincible and we as a country have been overwhelmed by the “feelings police”.  Someone needs to stand up to such maniacal behavior.  Otherwise there is no stopping it. I guarantee more to come.



Hillary Clinton Unconstitutional Pick for Secretary of State?

November 25, 2008

There is a legal discussion going around as to whether or not Senator Clinton is disqualified from being Secretary of State in line with the Article I, Section 6 Emoluments (Salary) Clause:

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time ….

The more difficult question is whether Senator Clinton’s ineligibility for appointment may be cured legislatively through the “Saxbe Fix,” where Congress reduces the Secretary of State’s salary to a level at or below where it was when Senator Clinton’s current term began in 2007. The Saxbe Fix got its name because the Nixon administration sought to eliminate Senator William Saxbe’s ineligibility for appointment as Attorney General by reducing the salary of that office to the level that existed before Senator Saxbe’s appointment. Although there was some opposition on constitutional grounds (most interestingly by Senator Robert Byrd and then-Harvard Professor Stephen G. Breyer), the legislation passed and Saxbe was confirmed. Later, Lloyd Bentsen served as Treasury Secretary after “Saxbe Fix” legislation reduced the salary of that office to its level immediately before Senator Bentsen’s Senate term had begun.

 Professor Volokh discusses this on his blog. It appears that the salary for secretary of state was raised in January 2008 which brings the Emoluments clause into play.  Professor Volokh asked John O’Connor, who wrote on the subject and this is what O’Connor replied:

It seems to me that there are two questions regarding whether the Emoluments Clause to the U.S. Constitution (Art. I, § 6, cl. 2) renders Senator Hillary Clinton constitutionally ineligible for appointment as Secretary of State: (1) whether Senator Clinton is now ineligible for appointment; and (2) if Senator Clinton is ineligible for appointment, whether that ineligibility may be cured by the so-called “Saxbe Fix,” whereby the Secretary of State’s salary is reduced to the salary in effect before Senator Clinton’s current Senate term began.

I think it is beyond dispute that Senator Clinton is currently ineligible for appointment as secretary of State. I also believe that the better construction of the Emoluments Clause is that the “Saxbe Fix” does not remove this ineligibility.

The Emoluments Clause provides that “[n]o Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time.” As I understand it, 5 U.S.C. § 5303 provides for an automatic annual increase in certain federal salaries, including the salary of the Secretary of State, unless the President certifies that an increase in salaries is inappropriate. The salary of the Secretary of State has increased during Senator Clinton’s current Senate term, which does not end until 2012. Therefore, under a straightforward application of the Emoluments Clause, Senator Clinton is ineligible for appointment as Secretary of State because the emoluments of that office “have been encreased” during Senator Clinton’s current Senate term, and this disability continues until the end of “the time for which [she] was elected, or until January 2013.

I do not believe it affects the analysis that the salary increase occurred as a result of an Executive Order or that the statute creating these quasi-automatic salary increases was enacted prior to Senator Clinton’s current term. By its plain language, the Emoluments Clause applies when the office’s salary “shall have been encreased,” without regard to exactly how it was increased. Indeed, an early proposed draft of the clause included language limiting it to an increase of emoluments “by the legislature of the U[nited] States,” and was later revised to encompass any increase in emoluments. It is worth noting that several Framers thought, without much explication, that the clause was too lax as initially drafted. The clause also does not require that a Senator or Representative have voted for the increase.

Professor Volokh, however, disagrees with the interpretation:

Here’s my very tentative thinking: I think the phrase “the Emoluments whereof shall have been encreased during such time” is ambiguous. It could mean “shall have been increased at least once,” or it could mean “shall have been increased on net.” If you’re thinking about buying a computer, for instance, and you ask “Has the price of this computer been increased during the last year?,” it seems to me quite possible that you would mean “Has it been increased so that it now costs more than it cost a year ago?,” rather than “Has it been increased at all, even if the price hike was entirely rolled back a month later?” In fact, the “on net” reading strikes me as more plausible than the rival reading. If that’s so, then the question is how you resolve the ambiguity, in light of

  1. the purpose of the Clause,
  2. the adjustment’s being a cost-of-living adjustment that in practice prevents a real-world decrease in pay rather than being a real-world increase (irrelevant to the purely textual analysis that would apply if the text were clear but possibly relevant if the text is ambiguous and we have to resort to determining the purpose of the Clause), and

the Saxbe fix precedent, which dates back to then-President William Howard Taft and Secretary of State Philander C. Knox and has been reinforced by President Nixon and Saxbe, President Carter and Secretary of State Edmund Muskie, and President Clinton and Secretary of the Treasury Lloyd Bentsen, though it has been dissented from during the Reagan Administration, when the Administration’s conclusion that the Saxbe fix was unconstitutional apparently helped lead to the selection of Robert Bork (and then Douglas Ginsburg and finally Anthony Kennedy) in place of Senator Orrin Hatch.

I have no recollection from law school regarding any discussion of the Emoluments Clause. It has been several years, but most of my law school discussions about Con Law centered around VAWA and federalism in modern jurisprudence.  I will definitely be doing more reading on the subject. More than a question on whether or not Senator Clinton should be Secretary of State it is an interesting topic of Constitutional law.

If anyone has a take on the subject, I’d love to hear it.

– Yossarian


Eric Holder is to Jack Bauer as Paring Knife is to Peeler?

November 25, 2008

Soon to be Attorney General Eric Holder’s take on the Geneva Convention:

One of the things we clearly want to do with these prisoners is to have an ability to interrogate them and find out what their future plans might be, where other cells are located; under the Geneva Convention that you are really limited in the amount of information that you can elicit from people.

It seems to me that given the way in which they have conducted themselves, however, that they are not, in fact, people entitled to the protection of the Geneva Convention. They are not prisoners of war. If, for instance, Mohamed Atta had survived the attack on the World Trade Center, would we now be calling him a prisoner of war? I think not. Should Zacarias Moussaoui be called a prisoner of war? Again, I think not.

Could he actually to be the right of John McCain on torture? We don’t advocate torture, but believe that coercive interrogation is an option that should never be taken off the table.



Ten Rising GOP Stars

November 25, 2008

Chris Cillizza from The Fix at the Washington Post has compiled a solid list of GOP rising stars to watch in 2012. 

– Polymath 3

Steve Poizner: Poizner, the Insurance Commissioner of California, has an early head-start on being the Republican nominee for governor in 2010. And, if Sen. Dianne Feinstein (D) decides not to run, Poizner’s ability to self-fund a campaign coupled with his relatively short time in elected office and his outsider message could make him viable in the general election. As California goes, so goes the country.

Haley Barbour: There are those who mention Barbour’s name for the 2012 GOP nomination. We are decidedly skeptical about that — will the country be ready for a man who had a hand in inventing modern-day lobbying in Washington? — but Barbour is clearly someone to watch. Remember that before he became governor of Mississippi in 2003, Barbour was one of the leading political operatives in the country and has tentacles (and acolytes) all over the country. That makes him a force to be reckoned with.

Jon Huntsman Jr.: As The Fix was waiting to meet with Huntsman on Thursday, CNN’s Wolf Blitzer was touting him as a rising star in Republican politics. Nice convergence. Huntsman won re-election earlier this month with 78 percent (granted it was in ruby red Utah) and has the looks and re&eaccute;sum&eaccute; — fluent in Chinese, progressive on the environment — that could make him appealing for a party looking desperately for a different profile. Huntsman is a Mormon, however, and, as Mitt Romney demonstrated earlier this year, that could be a major problem if he decides to run for president.

Eric Cantor: The Virginia Republican’s unfettered rise through the ranks of House leadership continued earlier this week when he was elected Minority Whip — the second ranking position within the GOP. Cantor was among those vetted in John McCain’s vice presidential search and his personal background — a Jewish Republican — will be intriguing for many within the party looking for something new. Cantor’s problem: Is the House too small a perch from which to become a national figure?

Mark Sanford: South Carolina’s Sanford is the newly elected chair of the Republican Governors Association, a useful job through which to raise one’s national profile. Since McCain’s loss earlier this month, Sanford has been a leading voice for the party to return to the principles of former President Ronald Reagan; “Some on the left will say our electoral losses are a repudiation of our principles of lower taxes, smaller government and individual liberty,” wrote Sanford in an op-ed piece for “But Tuesday was not in fact a rejection of those principles — it was a rejection of Republicans’ failure to live up to those principles.” Sanford’s reform credentials are impeccable but he has, throughout his career, rubbed the party establishment wrong, which could hurt him as he seeks a broader role.

Bob McDonnell: McDonnell, Virginia’s attorney general, will be the Republican standard-bearer in the Commonwealth’s gubernatorial race in 2009. Off-year statewide elections are always looked to by the two parties as litmus tests for how each side is doing, and the fact that this campaign will take place in the purple state of Virginia makes McDonnell all the more important. If he wins, it will be seen as a sign that the Republican party is alive and well and living in Virginia. If he loses, he’ll join the Jerry Kilgore Hall of Fame.

Mitch Daniels: Even as Obama was pulling off a stunning win in the Hoosier State at the presidential level, Daniels was cruising to reelection by 18 points. At the end of the campaign, Daniels pledged in a television ad that he would never run for another office but even if he stays true to his word, his experience in 2008 makes him a valuable commodity for Republicans. While Daniels’s ties to George W. Bush won’t help him — he served as the director of the Office of Management and Budget from 2001 to 2003 — his electoral success in a critical Midwest battleground means Daniels has a seat at the table.

Mitt Romney: Discount the former Massachusetts governor and presidential candidate at your own peril. Romney has three big things going for him: he is, by almost anyone’s account, an expert on the American economy; he is incredibly ambitious and will work harder than almost anyone to make sure his voice is heard; and he has immense personal wealth and a willingness to spend it. Do his flip-flops on social issues (and his Mormonism) still make social conservatives queasy? You bet. But Romney is in the mix and will aim to stay there.

John Thune: The South Dakota Senator is incredibly well positioned to emerge as the telegenic voice of the Obama opposition. Thune is part of a group of young and aggressive Republican senators who will look to take the fight to Obama and Senate Democrats over the next two years. It doesn’t hurt Thune that he is already a revered figure among conservatives after ousting former Senate Majority Leader Tom Daschle in 2004. Thune’s problem is that conventional wisdom within the party already seems to be settling on the idea that the GOP governors need to lead Republicans out of the wilderness in which they currently find themselves.

Bobby Jindal: There is NO hotter commodity in the Republican party these days than Jindal. Jindal is the rare candidate who both reformers and establishment types find appealing, and as a 37-year-old Indian American he is — literally and figuratively — the sort of new face the party is pining for. While Jindal is hot right now, it’s important to remember that he is the governor of a state with a complex political scene — meaning there will be myriad opportunities for Jindal to falter over the next few months and years.


Roll Back the Bailout – Contact your Senator ASAP to VOTE FOR “S. 3683”

November 24, 2008

The bailout is a disaster – this is taxpayer money, being spent like a gambling adict trying to blindly make up for a really bad weekend in Vegas before the plane takes off.  Unless anyone has confidence that Obama’s team and the Dems in Congress are going to wisely utilize the $700 billion or the U.S. Treasury and our future tax dollars for that matter, and not take advantage of the situation by passing their green and social justice policies immediately and blaming the negative impact they create on financial markets on Bush policies and this meltdown – press your U.S. Senator to vote for the bill below to rollback the tax cut.  This has gotten out of hand.

Senator Inhofe has introduced a Senate bill to roll back the bailout. 

Call or email YOUR U.S. Senator today and ask them to vote for S. 3683

Polymath 3


Bobby Jindal’s Creative Medicaid Reform

November 24, 2008

The GOP will be led out of the wilderness by leaders who actually understand policy.

– Polymath 3

(From the Wall Street Journal)


Bobby Jindal, Louisiana’s prodigy Governor, has been arguing lately that only policy innovators will break a path out of the GOP’s political wilderness — and he is leading by example. Mr. Jindal recently announced a major renovation of the way his state provides health coverage to the poor and uninsured, thus taking up a topic for which most Republicans require a shot of epinephrine just to pay attention.

[Review & Outlook] AP

Gov. Bobby Jindal

Name any health criteria, and Louisiana is probably scraping bottom. According to one national ranking, the state was 49th in health outcomes in 2007 and worst overall in 2006. Even though about a quarter of the population is enrolled in Medicaid, another quarter is uninsured. Even though the federal government’s “matching rate” pays out 71% of state Medicaid costs, state spending has doubled to 16% of the general budget over just the last two years. That share is projected to rise to 22% by 2011, swallowing funding for schools, police and other priorities.

Governor Jindal plans to steer working-poor Medicaid recipients out of the current “fee for service” program, where the state pays a set rate for all health-care charges (some 54 million this year). Instead, they’d choose among private managed-care plans, with Louisiana paying a fixed per-patient amount, adjusted for health risks. Essentially, Mr. Jindal wants to use Medicaid dollars to fund something like private insurance. That way, physicians and hospitals will be compensated for outcomes — rather than volume of visits and procedures — and get incentive payments for good performance.

Such a “defined contribution” plan is one way to wrestle run-amok health costs back under control and spend more responsibly. It isn’t a new idea, but it is a good one. Congressional Republicans passed a similar reform in 1995 for Medicare, which Bill Clinton vetoed — only to have his own bipartisan commission endorse it in 1999.

Since Louisiana will increase the value of its Medicaid dollars and free up other funding, it will also be able to expand eligibility. The initiative will start with about 380,000 people in New Orleans, Baton Rouge and two other regions, with the rest of the state integrated over the next five years. The hope is that by integrating fee for service’s separate silos and realigning incentives, the quality of the delivery system will also improve.

Medicaid allows states the flexibility to experiment like Mr. Jindal, but it requires a federal waiver. Currently, Louisiana’s negotiations are hung up on $771 million that the feds claim the state owes, much of it in alleged “overpayments.” States often game the system to filch federal money they don’t deserve, courtesy of national taxpayers. But in this case, Louisiana ought to get credit for good behavior, especially considering that Mr. Jindal inherited the problem. In any event, the state only wants to pay back Medicaid over a longer term while producing savings compared to the status quo.

The Bush Administration’s go-ahead is also a matter of urgency. If the talks aren’t wrapped up soon, Mr. Jindal will be forced to start over with Barack Obama’s team, which will be hostile to reforms that bank on the private sector. Either way, just the transition itself could delay things for six months or a year or more.

Congress is currently considering a state Medicaid “bailout” as part of its second stimulus package, in which Washington would pay for an even greater share of state health spending. That would reward the most spendthrift states. Mr. Jindal’s proposal is a far better idea.


Obama’s Attorney General Choice: Regulate Communication on the Internet

November 21, 2008

If the government can regulate pornography, Holder insisted while serving as Deputy AG during the Clinton administration, surely the government can restrict speech in general:

“The court has really struck down every government effort to try to regulate it. We tried with regard to pornography. It is gonna be a difficult thing, but it seems to me that if we can come up with reasonable restrictions, reasonable regulations in how people interact on the Internet, that is something that the Supreme Court and the courts ought to favorably look at.” – May 28, 1999 NPR Morning Edition


First Amendment:

Congress shall make no law … abridging the freedom of speech.  That appears rather clear.  It doesn’t authorize “reasonable restrictions”, or “reasonable regulations”, or what Holder really wants, “reasonable federal censorship”.


Obama wants to have Eric Holder as AG – it would not be surprising if his Supreme Court nominations share the same views as Holder regarding reasonable restrictions and regulations on internet communication as well.  The uninformed electorate never factored this into their voting decision – real issues that were never explored as to not disturb them from plastering “Obama” this and thats all over their myspace pages.  Congrats – It is unlikely these same voters will recognize what will hit them until it does – but it is clear the left is quietly advancing their agenda and positioning themselves to make very big changes – it just doesn’t sound like change you can believe in.

– Polymath 3


Amendment vs. Revision: The Impact on Prop-8

November 20, 2008

The anti Prop-8’ers are attacking the new amendment the only way it can.  Three lawsuits have been brought to the California Supreme Court regarding the process of the Prop-8 initiative.  The opponents of Prop-8 contend that the language defining marriage as between a man and a woman is actually a revision to the Constitution and not an amendment.  Why is that a big deal?  Let me explain:

Via The Volokh Conspiracy:

Under the California Constitution, an initiative can be used for “amendments” but not “revisions”:

[Art. XVIII, § 1.] The Legislature …, two-thirds of the membership of each house concurring, may propose an amendment or revision of the Constitution ….

[§ 2]. The Legislature …, two-thirds of the membership of each house concurring, may submit at a general election the question whether to call a convention to revise the Constitution….

[§ 3]. The electors may amend the Constitution by initiative.

[§ 4]. A proposed amendment or revision shall be submitted to the electors and if approved by a majority of votes thereon takes effect the day after the election unless the measure provides otherwise.

Ergo: Comparing section 1 with section 3 shows that, while the legislature may either propose an amendment or a revision, the initiative process may only propose an amendment and not a revision. I.e., if Prop-8 is an amendment then a simple majority by the voters is legitimate.  If Prop-8 is a revision then it should never have been put on the ballot; a 2/3 vote by the state legislature would be required.  This is confirmed in Raven v. Deukmejian, 52 Cal. 3d 336 (1990). 

In Raven, the California Supreme Court held that an “amendment” and a “revision” of the state Constitution is defined by a sliding scale hinging on two different factors: Quantitative Change and Qualitative Change to the Constitution.  The larger the change the more likely it is a revision.

1-Quantitative: A large change to the state Constitution would require commissions to “rewrite” portions of the state Constitution.  For example, in the 1960’s the California Constitution was almost 50,000 words; longer than any other state Constitution.  The California legislature commissioned a group to cut it down, which it did.  After the commission, the Constitution was cut down to 21,000 words.  The legislature had to vote on the change because it was so large and was deemed a revision and not an amendment.  In this case, Prop 8 only requires the edition of 14 words to the California Constitution.  It is not a large change and therefore should be seen as an amendment and not a revision.

2-Qualitative: This issue is much more difficult than quantitative. The opponents of Prop 8 make the argument that Prop 8 is discrimination of a “fundamental right” to a “suspect class” of citizens; because the “change” is so important to the Constitution, it should only be revised through legislative avenues.

(a)      Fundamental Right:  I cannot find the case, but marriage in California has been deemed a fundamental right (Loving v. VA) UNLESS stated otherwise. The 9th Circuit left the door open for an abridgment to the fundamental right of marriage; i.e., if otherwise stated.  The people of California stated otherwise on November 4th by a 52/48 margin.


(b)      Suspect Class: I have never found a case which said homosexuals, as a class, are suspect. The closest the Supreme Court has come to calling homosexuals a suspect class was in Romer v. Evans (the Colorado Prop II initiative). In that case, the Supreme Court told the Colorado legislature it could not write a law which disallowed legislation to specifically protect homosexuals (man is that a convoluted sentence). Even though the law was overturned, the Supreme Court admitted to using a rational basis test; most scholars suggest that the Supreme Court used some sort of scrutiny between rational basis and intermediate scrutiny. Rational basis judicial review, the lowest of all judicial reviews, has always been reserved for classes of people which are not suspect in the eyes of the judiciary.  In other words, homosexuals have never been deemed a suspect class by the Supreme Court.  If this case gets to the Supreme Court, it would have to overturn precedence and ignore stare decisis in the process if the Court wanted to call homosexuals a suspect class.

3-Another Argument:  However, the opponents of Prop 8 may make the argument that homosexuals are a “political unpopular group” like the hippies were in US Dept. of Agriculture v. Moreno. However, with the amount of legislation which has passed concerning hate crimes for beating up homosexuals (etc.), I do not know how that argument could be made.  Homosexuals are not a political unpopular group like the hippies or the Black Panthers in the 1960’s. 

Homosexuals are not a suspect class as they argue because very recent precedent cases in which the Supreme Court used a rational basis test when scrutinizing laws regarding homosexuals says so. (Romer and Lawrence).

In Conclusion:  Prop 8 is an amendment because it is both a minor quantitative and qualitative change to the California Constitution; marriage is only fundamental unless otherwise stated, and homosexuals are not a suspect class.

Either way, this is going to be a crazy year or so.