August 5, 2010
Orin Kerr (on Volokh) posed an interesting question this morning:
Should it matter to the constitutionality of Prop 8 that it was passed as part of a ballot initiative that restored preexisting law?
The initiative process is interesting stuff for those of us from states without this process. A 2007 Columbia Law Review article notes that 24 states permit this kind of citizen law making. See 107 Colum. L. Rev. 1437. Footnote 1 from this article provides some interesting sources describing why the Federal Constitution rejects “direct democracy.” For more on California’s initiative process, see CAJUR INITIATIVE § 1 et. seq.
To find an initiative, try the ‘legis’ databases. In California, your search might look like this:
- Database: ca-legis-old
- Query: ci(prop! & 8)
Results tell you where the document has been codified in the statutes. And, note that the statutrory credits at CA CONST Art. 1, § 7.5 references the relevant initiative:
(Added by Initiative Measure (Prop. 8, § 2, approved Nov. 4, 2008, eff. Nov. 5, 2008))
An appeal is likely. To set up a docket alert to track when the appeal and briefs have been filed, click on “Alert Center” in the upper-right corner of Westlaw, choose “create” to the right of “Docket Alert,” and follow the wizard for “Receive an alert when new cases are filed.”