Over on FindLaw, my fellow columnist Vik Amar registers a small disagreement with me over how to characterize the interplay between the California Supreme Court and the voters of California. In explaining why I thought the Cal S Ct was right to apply the principle of equal protection as expounded in its cases, rather than simply following public opinion on the permissibility of banning same-sex marriage, I said "California constitutional law [does not] embrace the view that minority rights turn on the majority's willingness to recognize those rights." Not so fast, says Amar. "In a very real sense, California constitutional law – and all constitutional law, for that matter – does embrace that exact view" because the continued existence of minority rights depends on the majority not amending the constitution to eliminate them. He approvingly quotes the other Professor Amar (his brother Akhil) for the proposition that "[i]n the end, individual [and minority group] rights in our system are, and should be, the products of ultimately majoritarian processes."
Amar was kind enough to share his column with me before it went up, and in private correspondence he suggested that our difference may be simply over wording rather than substance. I agree that this is a possibility, but with that very caution in mind, I nevertheless want to stick with my formulation of the point. Note that in the line quoted above, I said that California law does not currently embrace the view that the term equal protection should be defined so as to treat as equal whatever arrangements the majority believes are desirable. Of course, if the California Constitution were to be amended to eliminate its equal protection clause or to make the principle of equal protection non-justiciable, then my statement would no longer be true.
Amar suggests that this is a semantic distinction because the existence of minority rights ultimately depends on the views of the majority. Amar is wrong when he says this point is true of "all constitutional law." Where a constitution can only be amended by a super-majoritarian process (as is true of the U.S. Constitution, for example), minority rights, once made part of the constitution, will remain a part of it even if there is majority opposition to them, so long as that majority does not become a sufficiently large super-majority.
But what about California, which permits constitutional amendment by simple majority vote in a referendum? Here, I want to suggest that the California constitution is actually defective. At some point in California history, the requirement of obtaining signatures reflecting 8% of the voters to put a constitutional amendment before the people probably acted as a significant filter. However, modern methods of politics---including paid petition staff---have made this a relatively easy task. Accordingly, the California Constitution can be amended very easily.
As I noted in my column, the ease of amendment of the California Constitution should dramatically reduce the fear of judicial activism in California. If the Justices are terribly out of step with popular opinion as to the meaning of the state Constitution, the voters of the state can readily "overrule" the Justices. Thus, there is no real "counter-majoritarian difficulty" in California.
There does, however, appear to be a "majoritarian difficulty" in California. One of the purposes of having a constitution is to limit majoritarian decisions. Where a high court ruling is too difficult to change via constitutional amendment, the counter-majoritarian difficulty arises. But where the constitution can be amended as easily as a statute can be enacted, it effectively does not limit the majority, and thus we have the majoritarian difficulty.
Where, exactly, is the sweet spot between a Constitution that is too difficult to amend and one that is too easy to amend? That's a hard question to answer in the abstract, although prima facie, a constitution that is impossible to amend (as the German Constitution purports to be on certain particulars) seems too difficult, whereas a constitution that can be amended by the ordinary legislative process (as the Israeli Basic laws can be) seems too easy. But much depends on context. A simple majority vote in the national or provincial legislatures is all that's required to supersede a constitutional decision of the Supreme Court of Canada under the Notwithstanding Clause, but a strong customary norm has made that power very difficult to invoke in practice.
However one cashes out these questions in particular cases, it does seem that the one formulation we can categorically reject is Amar's. If you're going to have a constitution that functions as higher law at all, it can't depend on the will of the majority in the same way as ordinary legislation does.
Posted by Mike Dorf