Representative Turner has introduced the HB 1153 lipstick to put on the HJR 6/3 pig. One irritant to me about HB 1153 is proponents describing the bill as (and news media dutifully repeating) a “clarification” of the proposed Constitutional amendment.
When I was a legislative drafter, one of my jobs was to write the digests that summarized the effect of the bill. In those digests, I was always very careful not to claim that the bill “clarified” the law. Legislation specifies the law. Legislators and lobbyists like to downplay what they are doing by claiming that “this is already the law. We’re just clarifying it.” Thing is, if the law is unclear, then the possibility is that the actual law is something different. You are creating law by foreclosing that alternate possibility. That’s entirely proper for the legislature to do, but call it what it is — a specification of the law.
So, that’s the course of ordinary legislation. Here, however, you have something different. The General Assembly is attempting to specify what the law would be. Problem is, in this instance, they do not have the power to specify the law in this fashion. The Constitution trumps legislation. If the Constitutional language means something different, then the legislative specification has no more impact than me “specifying” or “clarifying” the law on my blog. In that situation, they are just words on a page.
They’re more than words on a page; they’re a disingenuous effort to mislead and to hide the true intent & impact of the proposed amendment.
Doug, would the situation be different had the text of the proposed amendment itself said something like: “The General Assembly may from time to time, by law, have the authority to clarity what the second sentence is supposed to mean”? That way the people, notwithstanding what would otherwise be a clear violation of the separation of powers, authorize that situation. (Although there would still be the problem of the same language not passing in two successive legislative bienniums.)
I don’t know, Doug. The judiciary monkeys with the law so much and supplants legislative intent with a court’s own desires, that it has become necessary to enact laws that specify just what other laws mean to guard against a court saying what a law means.
If we banned judicial review and the common law, we might be able to return to a condition in which the laws stood alone, absent explanatory material.
Do you realize what would happen if we either dismissed or completely ignored all common law? I don’t think you thought of the consequences through…so take a minute or – I don’t know – a few years and really dig deep.
Yeah, David, we would have statutory law. It’s been practiced far longer and more continuously than common law.
Did you not know this?
The General Assembly derives its powers from the Constitution. If it can “clarify” an amendment, what else can it “clarify” to either expand its own powers under the constitution, or reduce the roles of the judicial and executive branches?
To me, a legislature can not muck with a constitution outside of the amendment process. Any “clarification” should be in the amendment.
With this whole HJR 6/3/HB1153 process, the legislature appears to be succeeding at two things:
1. Galvanizing political opponents to the current Republican crowd who otherwise were dispirited or apathetic.
2. Creating a hell of a paper trail for the lawsuit that will be filed if this ever comes to pass.
BREAKING NEWS: House committee puts off votes on HJR 6/3 and HB1153.
http://www.indystar.com/story/news/politics/2014/01/13/indiana-house-panel-debates-gay-marriage-ban/4450469/
The stated reason: Rep. Greg Steuerwald, chair of the House Judiciary Committee, said “after the hearing that the committee ran out of time before the House was scheduled to convene at 1:30 p.m. and that several committee members told him they ‘wanted time to reflect on the testimony.’
“He said the committee would reconvene for a vote, but not today.”
Maybe this will pass, but this is a pretty good indication the votes are not there now.
A hilarious line in the story is Rep. Turner’s contention that “not having constitutional protection makes our state susceptible to judicial interpretation.” Correct me if I’m wrong, but state constitutional amendments can be declared unconstitutional, right?