COLUMBIA
HUMAN RIGHTS
LAW REVIEW
STATE CONSTITUTIONS AND THE BASIC
STRUCTURE DOCTRINE
Manoj Mate, Ph.D., J.D.
Reprinted from
Columbia Human Rights Law Review
Vol. 45, No. 2
Winter 2014
COLUMBIA HUMAN RIGHTS LAW REVIEW
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Winter 2014
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STATE CONSTITUTIONS AND THE BASIC
STRUCTURE DOCTRINE
Manoj Mate, Ph.D., J.D.*
Across the United States, voters in many states have enacted
initiative constitutional amendments that abrogate protections for
equality and fundamental rights. In most cases, state supreme courts
have upheld the validity of these amendments, undermining
protections for fundamental rights at the state level. This Article
proposes a novel solution to this problem: it argues for the application
of the basic structure doctrine in the review of constitutional
amendments by state supreme courts. Under this doctrine, the
Supreme Court of India (like constitutional courts in other nations)
asserted the power to invalidate amendments that abrogate “basic
features” of the Indian Constitution as defined by the Court. Drawing
on this doctrine, this Article seeks to provide a methodological
framework for articulating which foundational principles and rights
should be entrenched within the constitutional framework. For
instance, the application of the basic structure doctrine would help
address several flaws in the California Supreme Court’s revisionamendment standard applied in Strauss v. Horton. In Strauss, the
majority upheld Proposition 8, the initiative measure banning samesex marriage, as a constitutional amendment.
Constitutional review at the state level is likely to garner
increased attention as a result of the U.S. Supreme Court’s recent
decisions in Hollingsworth v. Perry and U.S. v. Windsor. These
decisions can arguably be read to stand for “rights federalism,” the
concept that state governments will have the final say in defining the
range and scope of fundamental rights protections. Although the U.S.
Supreme Court may define and set a “floor” of guaranteed federal
*
Assistant Professor of Law, Whittier Law School; J.D., Harvard Law
School; B.A., M.A., Ph.D., University of California at Berkeley. A version of this
article was presented as part of the Center for International and Comparative
Law’s colloquia series at Whittier Law School. For helpful discussions and
feedback, I thank Malcolm Feeley, Robert A. Kagan, Betsy Rosenblatt, Stewart
Chang, Radha Pathak, Bill Patton, Patricia Leary, and Timothy Webster.
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constitutional rights, in light of the decisions in Perry and Windsor,
state supreme courts will continue to play a key role on these issues.
This Article frames the potential application of the basic
structure doctrine at the state level within theories of constitutional
change, and the tension between conceptions of popular sovereignty
and rights federalism. I argue that the basic structure doctrine would
advance the cause of “rights federalism” by enabling state supreme
courts to provide for stronger protections of fundamental rights than
does the Federal Constitution. State constitutions are far more
malleable than the federal Constitution and consequently, state
supreme courts can play a crucial role in shielding rights from
abrogation by popular majorities. The Article concludes by exploring
the potential implications of adoption of a basic structure doctrine for
democratic theory and theories of constitutional change, the tension
between popular sovereignty and federalism.
I. INTRODUCTION .................................................................................. 442
II. THE BASIC STRUCTURE DOCTRINE AND STATE CONSTITUTIONALISM:
THEORETICAL CONSIDERATIONS........................................................... 452
A. Conceptions of Entrenchment: Political Entrenchment versus
Judicial Entrenchment ................................................................... 453
B. Popular Federalism v. Judicial (Rights) Federalism ............... 456
III. THE REVISION-AMENDMENT STANDARD IN STRAUSS V. HORTON.. 458
IV. THE BASIC STRUCTURE DOCTRINE IN INDIA ................................... 464
A. Development of the Basic Structure Doctrine .......................... 465
1. Golak Nath (1967): Fundamental Rights and the Amending
Power ........................................................................................... 466
2. Kesavananda Bharati v. Kerala (1973): The Assertion of the
Basic Structure Doctrine ............................................................ 468
3. The Election Case: A Framework for Identifying Basic
Features ....................................................................................... 473
B. Unpacking the Basic Structure Doctrine .................................. 482
V. APPLYING THE BASIC STRUCTURE DOCTRINE TO STRAUSS AND
PROPOSITION 8 ...................................................................................... 488
VI. CONCLUSION ................................................................................... 494
I. INTRODUCTION
”The expression ‘amendment of this Constitution’ does
not enable Parliament to abrogate or take away,
fundamental rights or to completely change the
2014]
State Constitutions and the Basic Structure Doctrine
443
fundamental features of the Constitution so as to
destroy its identity. Within these limits Parliament
can amend every article.”
-Chief Justice Sikri, Kesavananda Bharati v.
Union of India (1973)1
”I conclude that requiring discrimination against a
minority group on the basis of a suspect classification
strikes at the core of the promise of equality that
underlies our California Constitution and thus
“represents such a drastic and far-reaching change in
the nature and operation of our governmental
structure that it must be considered a ‘revision’ of the
state Constitution rather than a mere ‘amendment’
thereof” (citations omitted). The rule the majority
crafts today not only allows same-sex couples to be
stripped of the right to marry that this court
recognized in the Marriage Cases, it places at risk the
state constitutional rights of all disfavored minorities.
It weakens the status of our state Constitution as a
bulwark of fundamental rights for minorities
protected from the will of the majority. I therefore
dissent.
-Justice Carlos Moreno, dissenting opinion in
Strauss v. Horton (2009)2
Compare these statements to the following exchange during
oral arguments in Strauss v. Horton (2009), discussing whether
Proposition 8, the initiative constitutional amendment banning samesex marriage in California, constituted an amendment or revision to
the California Constitution:
Chief Justice Ronald GEORGE: If Proposition 8 had
explicitly stated that . . . the right to form a family
relationship, and to associate and bring up children
and so forth—virtually all the domestic partnership
rights, if you will—were abolished. . . . Let’s say
Proposition 8 had gone that far, you’re saying that
that would be permissible as an amendment—it
would not constitute a revision? . . .
1.
2.
Kesavananda Bharati v. State of Kerala, (1973) 4 S.C.C. 225 (India).
Strauss v. Horton, 207 P.3d 48 (Cal. 2009).
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Kenneth STARR: It still would not constitute a
revision. . . . There must be a far-reaching change in
the basic structure of government. All these
hypothetical questions have to do with rights—very
important rights, rights that will be protected through
the Federal Constitution, even if people unwisely act
through the initiative process.
GEORGE: So, right to marriage, right to free speech,
whatever, that can be removed by the simple
amendment process?
STARR: As long as it is, in fact, clear to the people
what they are voting on.3
In defending the validity of Proposition 8, Starr proceeded to
make an extraordinary argument for a broad conception of popular
sovereignty that was based on decades of California precedent—that
initiative constitutional amendments that infringed upon, or even
entirely removed, fundamental rights from the California
Constitution were permissible. The exchange illuminated deep flaws
in the Court’s existing revision-amendment jurisprudence, at least as
applied by the majority in Strauss in upholding Proposition 8’s
validity. Article 18 of the California Constitution recognizes a
distinction between amendments and revisions.4 The electorate may
amend the constitution through the initiative process, which requires
the submission of a petition with the signatures of eight percent of
the electorate to place the initiative on the statewide ballot, and
approval of the initiative by majority vote of the electorate. 5 By
contrast, revisions must be proposed either by constitutional
convention or by two-thirds of both houses of the legislature for
3.
Proposition 8 Repeal Oral Arguments David Edwards & Stephen C.
Webster, Arguing for Prop. 8, Ken Starr says any right can be taken, The Raw
Story (Mar. 5, 2009), http://rawstory.com/news/2008/Ken_Starr_argues_for_
Prop_8_0305.html; Proposition 8 Repeal Oral Arguments,
http://www.cspan.org/video/?284455-1/proposition-8-repeal-oral-arguments
4.
Cal. Const. Art. XVIII. Article 18 originally only allowed the legislature
to propose amendments, but Article 18 was amended in 1962 through the
enactment of the Proposition 7, to allow the legislature to propose revisions.
Strauss, 207 P.3d at 87.
5.
Cal. Const. art. II, § 8.
2014]
State Constitutions and the Basic Structure Doctrine
445
submission to the voters on the statewide ballot, and then be
approved by a majority vote of the electorate.6 Under California law,
the state judiciary has the power to invalidate constitutional
amendments on the grounds that they constitute impermissible
revisions to the Constitution, if an amendment effects “far-reaching
or substantial changes in the basic governmental plan or framework
of the California Constitution.”7
***
The U.S. Supreme Court’s recent decisions in Hollingsworth
v. Perry and U.S. v. Windsor have bolstered the movement for samesex marriage rights in California and across the nation. In many
ways, these decisions represented the culmination of an ongoing
effort to legalize same-sex marriage in state legislatures and through
initiatives, 8 as well as battles in state and federal courts over the
constitutionality of measures banning same-sex marriage. Prior to
these U.S. Supreme Court’s decisions, state supreme courts in
Massachusetts, Iowa, and California recognized a constitutional right
to marriage for same-sex couples, and several states have recently
legalized same-sex marriage.9 In Windsor, the Court invalidated the
Defense of Marriage Act on due process and equal protection grounds,
6.
Cal. Const. art. XVIII.
7.
Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization,
583 P.2d 1281 (1978); Raven v. Deukmejian, 801 P.2d 1077, 1086–88 (Cal. 1990);
Mcfadden v. Jordan, 196 P.2d 787, 788–89 (Cal. 1948)
8.
Currently, seventeen states allow same sex marriage in the United
States: California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine,
Maryland, Massachusetts, Minnesota, New Hampshire, New Mexico, New Jersey,
New York, Rhode Island, Vermont, Washington, and the District of Columbia.
State supreme courts in the following state have legalized same-sex marriage:
California (May 15, 2008 (overturned by Proposition 8, which was subsequently
invalidated by the federal district court in Perry v. Schwarzenegger (2010))),
Connecticut (Nov. 12, 2008), Iowa (Apr. 24, 2009), Massachusetts (May 17, 2003,
New Mexico (December 19, 2013). The following states have legalized same-sex
marriage via state legislation: New Hampshire (Jan. 1, 2010), Maine (2012),
Maryland (2012), Minnesota (2013), New York (July 24, 2011), Vermont (Sept. 1,
2009), Washington (2012). The District of Columbia legalized same sex marriage
on Mar. 10, 2012.
9.
See Kerrigan v. Comm’r of Pub. Health, 957 A.2d 407 (Conn. 2008);
Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941 (Mass. 2003); Varnum v. Brien,
763 N.W.2d 862 (Iowa 2009); Baker v. Vermont, 744 A.2d 864 (Vt. 1999); Lewis v.
Harris, 908 A.2d 196 (N.J. 2006); In re Marriage Cases, 183 P.3d 384 (Cal. 2008).
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and in Perry, the Court ruled that petitioners did not have standing
to appeal Judge Vaughn’s decision at the district court in Perry v.
Schwarzenegger (2010), in which the district court invalidated
Proposition 8 on substantive due process and equal protection
grounds. 10 Notwithstanding the U.S. Supreme Court’s decisions in
Perry and Windsor, federal courts have had a mixed track record on
this issue: they have both invalidated and upheld state bans on same
sex-marriage. 11 The U.S. Supreme Court appeared to adopt a
strategic approach12 to resolving each of these cases in order to avoid
political backlash; neither decision affirmatively recognized a
fundamental right to same-sex marriage. 13 Effectively, this means
that state governments will continue to play a major role in
regulating same-sex marriage, at least for the foreseeable future.
Consequently, state supreme courts will continue to play a
key role on this issue, and in other controversies involving
10.
Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010).
11.
See Jackson v. Abercrombie, 884 F. Supp. 2d 1065 (D. Haw. 2012)
(upholding Hawaii’s same sex marriage ban); Perry v. Schwarzenegger, No. C
09-02292 JW, 2011 U.S. Dist. LEXIS 105483 (N.D. Cal. Sept. 19, 2011)
(invalidating Proposition 8’s ban on same-sex marriage in California); Perry v.
Schwarzenegger, 630 F.3d 909 (9th Cir. 2011) (affirming district court’s decision);
Gill v. Office of Personnel Management, 699 F. Supp. 2d 374 (D. Mass 2010) and
Massachusetts v. U.S. Dep’t of Health and Human Services, 698 F.Supp.2d. 234
(D. Mass. 2010) (invalidating Section 3 of Defense of Marriage Act); Gill et al. v.
Office of Personnel Management, 682 F.3d 1 (1st Cir. 2012) (upholding district
court decision); Windsor v. U.S., 699 F.3d 169 (2d Cir. 2012); Sevcik v. Sandoval,
911 F. Supp. 2d 996 (D. Nev. 2012).
12.
Diana Richmond, Hollingsworth v. Perry and U.S. v. Windsor: After
Jubilation, What?, Lexis Nexis Emerging Issues Analysis, July 2013, available at
http://sideman.com/files/EIC7034-1.pdf.
13.
The majority in Windsor invalidated the Defense of Marriage Act as
violating both due process and equal protection principles under the Fifth
Amendment, and suggested (but did not definitely rule) that DOMA
impermissibly intruded upon state authority to regulate marriage. Consistent
with the Court’s earlier decision in Romer v. Evans, 517 U.S. 620 (1996), the
Court did not recognize a federal constitutional right to same-sex marriage.
United States v. Windsor, 133 S. Ct. 2675 (2013), 2689–96. See Neomi Rao, The
Trouble with Dignity and Rights of Recognition, 99 Va. L. Rev. Online 29, (2013),
available at http://ssrn.com/abstract=2313234 (arguing that Windsor recognized
the dignity of same-sex marriage, not the right to same-sex marriage, in holding
that the federal government must recognize existing same-sex marriages at the
state level).
2014]
State Constitutions and the Basic Structure Doctrine
447
fundamental rights.14 This is especially true in states that provide for
amendment by popular initiative. In California and other states,
state supreme courts have upheld the constitutionality of initiative
constitutional amendments that sought to ban same-sex marriage by
similarly refusing to construe them as revisions.15 Under California
law, the state judiciary has the power to invalidate constitutional
amendments on the grounds that they constitute impermissible
revisions to the Constitution if an amendment effects “far reaching”
or “substantial changes in the basic governmental plan” or framework
of the California Constitution.16 This definition of revision has been
construed narrowly in its application to subsequent cases to exclude
amendments that curtail or abrogate fundamental rights, and other
state supreme courts have construed revision narrowly, reducing
state constitutional protections for fundamental rights.
This Article argues for state supreme court adoption of the
basic structure doctrine for evaluating the constitutionality of
amendments at the state level. The Article situates the proposed
application of the basic structure doctrine by state courts within
broader theoretical perspectives on constitutional change and
normative arguments for applying the basic structure doctrine to
state constitutional analysis. The Article also advances arguments for
“judicial entrenchment” by courts and explores the implications of the
basic structure doctrine for popular and judicial federalism.17
In arguing for the application of the basic structure doctrine
at the state level, this Article revisits the California Supreme Court’s
decision in Strauss v. Horton (2009).18 The majority in Strauss upheld
the constitutionality of Proposition 8—the initiative-constitutional
amendment enacted by California voters depriving same-sex couples
of the right to marriage that had earlier been recognized in the In re
14.
See Emily Zackin, Looking for Rights in All the Wrong Places: Why
State Constitutions Contain America’s Positive Rights (2013) (illustrating how
positive rights have been enshrined in state constitutions in the United States).
15.
Strauss v. Horton, 207 P.3d 48 (Cal. 2009); Bess v. Ulmer, 985 P.2d 979
(Alaska 1999) (upholding initiative banning same sex marriage in Alaska);
Martinez v. Kulongoski, 185 P.3d 498 (Or. Ct. App. 2008) (upholding initiative
banning same-sex marriage in Oregon); see also Standhardt v. Superior Court, 77
P.3d 451, 457 (Ariz. Ct. App. 2003) (upholding ban on same-sex marriage in
Arizona).
16.
Raven v. Deukmejian, 801 P.2d 1077, 1086–88 (Cal. 1990).
17.
See Bruce E. Cain & Roger G. Noll, Malleable Constitutions: Reflections
on State Constitutional Reform, 87 Tex. L. Rev. 1517 (2009).
18.
Strauss, 207 P.3d 48; see Cain & Noll, supra note 17.
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Marriage Cases (2008). 19 Drawing on its earlier jurisprudence, the
Strauss Court ruled that Proposition 8 did not constitute a revision to
the constitution, because the amendment did not effect far-reaching
or substantial changes in the basic governmental plan or framework
of the California Constitution. 20 Under California law, while
amendments may be enacted by majority popular vote through ballot
initiatives, revisions must be initiated and be approved by a majority
vote of the legislature or a constitutional convention, prior to being
submitted to the voters via the initiative process for their approval by
majority vote.21
Justice Carlos Moreno’s dissenting opinion, and Justice
Werdegar’s concurring opinion, represented a significant departure
from existing California precedent in articulating variants of an
“entrenched provisions” doctrine. 22 Both of these opinions went far
19.
In re Marriage Cases, 183 P.3d 384 (Cal. 2008).
20.
Strauss, 207 P.3d at 48.
21 .
See Cain & Noll, supra note 17. California courts have previously
upheld these amendments as valid. For example, one such amendment includes
the 1982 initiative Proposition 8, commonly referred to as "The Victims' Bill of
Rights," which sought to add constitutional provisions providing for “a bill of
rights for victims of crime, including safeguards in the criminal justice system to
fully protect those rights.” Cal. Const. art. I, § 28(a)(2); see Brosnahan v. Brown 32
Cal.3d 236 (Cal. 1982). The courts have also upheld Proposition 13, a 1978
initiative that added Article XIIIA to the California Constitution that made
significant changes to the system of property taxation and taxing powers
throughout the state, “imposing important limitations upon the assessment and
taxing powers of state and local governments.” Amador, 583 P.2d at 1283. In
contrast, the Supreme Court of California held that Proposition 115, a criminal
justice initiative constitutional amendment that effected a significant number of
changes to the California Constitution, constituted a revision and was therefore
invalid. Proposition 115 added several new sections that effectively removed state
protections for criminal defendants. See Raven, 801 P.2d at 1087–1089.
22.
For a discussion of the concept of entrenched rights provisions and
constitutional entrenchment, see Elai Katz, On Amending Constitutions: The
Legality and Legitimacy of Constitutional Entrenchment, 29 Colum. J.L. & Soc.
Probs. 251 (1996); Ran Hirschl, The Political Origins of the New
Constitutionalism, 11 Ind. J. Global Legal Stud. 71 (2004); Mark Tushnet, Social
Welfare Rights and the Forms of Judicial Review, 82 Tex. L. Rev. 1895 (2004);
Richard Fallon, The Core of an Uneasy Case for Judicial Review, 121 Harv. L.
Rev. 1693 (2008) Ernest A. Young, Constitutive and Entrenchment Functions of
Constitutions: A Research Agenda, 10 U. Pa. J. Const. L. 399 (2008); Jacob Levy,
Paper presented at the annual meeting of the American Political Science
Association: Federalism and Constitutional Entrenchment (June 24, 2012); Cass
Sunstein, One Case at a Time: Judicial Minimalism on the Supreme Court (1999);
Mark Tushnet, Taking the Constitution Away from the Courts (2000). For
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State Constitutions and the Basic Structure Doctrine
449
beyond the limited “structural-organizational” conception of a
constitutional revision articulated by the majority,23 suggesting that
amendments that abrogate foundational constitutional principles,
including fundamental rights, could also constitute revisions. 24
Justice Moreno dissented and voted to invalidate Proposition 8 on the
grounds that the initiative vitiated the equal protection clause and
therefore constituted an impermissible revision under California
law.25
Although Justice Werdegar ultimately concurred with the
majority in Strauss in upholding the constitutionality of Proposition
8, he also argued for a broader definition of constitutional revision.
Werdegar argued that initiatives that substantially alter the
“foundational principles of social organization in free societies” could
also be classified as revisions, and that an “amendment of sufficient
scope to a foundational principle of individual liberty . . . such as
equal protection” would constitute a revision. 26 But Werdegar
ultimately concluded that Proposition 8 did not alter or abrogate a
foundational constitutional principle, because the initiative merely
limited access to the word “marriage” and thus reflected simple
“disagreement over a single, newly recognized, contested application
of a general principle.”27
In invalidating Proposition 8, Moreno articulated an
“entrenched rights provisions” argument that went far beyond
existing precedent. He suggested that core features of the California
Constitution, including fundamental rights provisions like equal
critiques of judicial review and constitutional entrenchment more generally, see
Larry Kramer, The People Themselves (2005); Jeremy Waldron, A Right-Based
Critique of Constitutional Rights, 13 Oxford J. Legal Stud. 18, 18–51 (1993);
Jeremy Waldron, Law and Disagreement (1999); Richard Fallon, The Core of the
Case Against Judicial Review, 115 Yale L.J. 1346 (2006).
23.
See Strauss, 207 P.3d at 124 (Werdegar, J., concurring), 207 P.3d at133
(Moreno, J., concurring and dissenting).
I derive the term “structuralorganizational” from Justice Werdegar’s concurrence in which she observes: “The
majority purports to find in this court’s prior decisions a definition of the term
“revision”—one focused on governmental structure and organization—that
categorically excludes Proposition 8 and thus avoids the daunting task of
reconciling with our constitutional tradition a voter initiative clearly motivated at
least in part by group bias.” Id. at 124.
24.
Id.
25.
See Strauss, 207 P.3d at 133 (Moreno, J., concurring and dissenting).
26.
Id. at 124 (Werdegar, J., concurring).
27.
Id. at 128.
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COLUMBIA HUMAN RIGHTS LAW REVIEW
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protection, could only be restricted or changed through revision, not
amendment. Using Justice Moreno’s dissent as a window for the
consideration of foreign and legal sources, this Article argues more
generally for the consideration and application of the “basic structure
doctrine”—developed by the Supreme Court of India 28 in
Kesavananda—by state constitutional courts, as a doctrinal
framework for the review of constitutional amendments. 29 According
to this doctrine, constitutional courts may invalidate constitutional
amendments that are held to violate the “basic structure” of a
constitution.30 The basic structure doctrine can provide guidance and
insights for California and other state supreme courts, in altering,
clarifying and improving upon the revision-amendment standard to
make it a more coherent and workable test that allows for meaningful
distinctions.
The opinions in Strauss v. Horton reflect a spectrum of
divergent approaches to defining the scope of constitutional revision
under California law. More globally, the Strauss decision raises
fundamental questions about the nature of federalism,
constitutionalism, and fundamental rights, suggesting that state
28 .
Several recent works have explored the doctrinal and historical
development of the Indian basic structure doctrine. See Sudhir Krishnaswamy,
Democracy and Constitutionalism in India: A Study of the Basic Structure
Doctrine in India (2009); Pratap Bhanu Mehta, The Inner Conflict of
Constitutionalism: Judicial Review and the Basic Structure, in India’s Living
Constitution: Ideas, Practices, Controversies 178–206 (Zoya Hasan et al., eds.,
2002); Raju Ramachandran, The Supreme Court and the Basic Structure Doctrine,
in Supreme But Not Infallible: Essays in Honour of the Supreme Court of India
107–33 (B.N. Kirpal et al., eds., 2000); S.P. Sathe, Judicial Activism in India:
Transgressing Borders and Enforcing Limits (2002).
29 .
Several articles have recently discussed the Indian basic structure
doctrine and suggested its similarity to the Proposition 8 case and the revisionamendment distinction under California law. See Vicki Jackson, Unconstitutional
Amendments: A Window into Constitutional Theory and Transnational
Constitutionalism (draft article on file with author); Rosalind Dixon,
Transnational
Constitutionalism
and
Unconstitutional
Constitutional
Amendments (Chicago Public Law and Legal Theory Working Paper No. 349),
available at http://ssrn.com/abstract=1840963.
30.
India is not the only judiciary to have developed a basic structure
doctrine. High courts in other countries, including Germany, South Africa,
Turkey, Israel, Colombia, and Brazil have developed and applied similar doctrinal
approaches allowing for judicial review of the constitutionality of amendments.
See Kemal Gözler, Judicial Review of Constitutional Amendments: A Comparative
Study 52–53 (2008); Jackson, supra note 29; Richard Albert, Nonconstitutional
Amendments, 22 Can. J. L. & Jurisprudence 5 (2009).
2014]
State Constitutions and the Basic Structure Doctrine
451
supreme courts play a unique role in policing violations of
fundamental rights by popular majorities at the state level. Indeed,
as scholars like Cain and Noll have noted, state constitutions in the
United States are far more malleable than the federal constitution.
Because constitutional revision in California and other states is
procedurally much more difficult, most coalitions seeking changes to
the constitution have increasingly turned to amendments as the
preferred strategy for seeking constitutional change.31 As a result, the
frequency of constitutional amendments has increased at the state
level, while the frequency of constitutional revisions has declined over
the past three decades. 32 Cain and Noll argue that this “emerging
pattern of hyperamendability” has resulted in a “growing lack of
constitutional coherence and flexibility” and a “majoritarian drift in
rights policies” in states that heavily use the initiative process.33
California’s revision-amendment jurisprudence is arguably
the most well developed, and state courts in other jurisdictions,
including Oregon and Alaska, have relied on California case law in
deciding whether amendments rise to the level of constitutional
revisions.34 In Raven v. Deukmeijian (1990), the California Supreme
Court for the first time invalidated an initiative constitutional
amendment—Proposition 115—as a revision on the grounds that the
initiative “contemplated such a far-reaching change in the state’s
governmental framework as to amount to a qualitative constitutional
revision.” 35 However, the standard for distinguishing between
revisions and amendments has been applied unevenly and
inconsistently, and in several other cases, amendments that
seemingly effected broad qualitative changes to the Constitution were
not held to be revisions.36 The California Supreme Court’s failure “to
31 .
See Cain & Noll, supra note 17, at 1521, 1530; Bruce E. Cain,
Constitutional Revision in California: The Triumph of Amendment over Revision,
in 1 State Constitutions for the Twenty-First Century 59, 59–60 (G. Alan Tarr &
Robert F. Williams eds., 2006).
32 .
See Cain & Noll, supra note 17, at 1531 (citing G. Alan Tarr,
Introduction, in 3 State Constitutions for the Twenty-first Century 1, 2 (G. Alan
Tarr & Robert F. Williams eds., 2006)).
33.
See Cain & Noll, supra note 17, at 1531–32.
34 .
See, e.g., Bess v. Ulmer, 985 P.2d 979 (Alaska 1999) (upholding
initiative banning same sex marriage in Alaska); Martinez v. Kulongoski, 185
P.3d 498 (Or. Ct. App. 2008) (upholding initiative banning same-sex marriage in
Oregon).
35.
Raven v. Deukmejian, 801 P.2d 1077, 1087–89 (Cal. 1990).
36.
See Cain & Noll, supra note 17, at 5.
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COLUMBIA HUMAN RIGHTS LAW REVIEW
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articulate a clear line between revision and amendment” and its
record of “mostly deciding against revisions objections” has
encouraged proponents of initiatives seeking to alter fundamental
rights to take the risk of potential judicial invalidation.37 This Article
suggests that the Indian basic structure doctrine offers a framework
state courts can use in evaluating the constitutionality of
amendments.38
Part II of this article examines theoretical perspectives on
constitutional change, and normative arguments and critiques of
applying the basic structure doctrine to state constitutional analysis,
and explores the implications of the basic structure doctrine for
popular and judicial federalism. Part III of this article analyzes the
application of the revision-amendment standard in Strauss v. Horton.
Part IV provides an overview of the development of the Indian basic
structure doctrine and explains why the basic structure doctrine
would provide a superior approach for evaluating the
constitutionality of amendments at the state level. Part V then
illustrates how the California Supreme Court could have deployed the
basic structure doctrine to review the constitutionality of Proposition
8, thereby improving the clarity and coherence of the revisionamendment framework and bolstering the case for a more robust
conception of revisions under California law.
II. THE BASIC STRUCTURE DOCTRINE AND STATE
CONSTITUTIONALISM: THEORETICAL CONSIDERATIONS
The basic structure doctrine poses obvious challenges to
modern conceptions of the proper role of courts in democratic polities.
In this Part, I analyze application of the basic structure doctrine at
the state level in the United States from the multiple perspectives of
theories of constitutional change and the role of courts in the
amendment process and federalism.
37.
Id.
38 .
The California Supreme Court may also review the validity of
amendments based on whether they are in compliance with the “single-subject
rule” as well as other procedural requirements. Although these other procedural
requirements are important, I do not analyze them here as they are beyond the
scope of this article. For an excellent treatment of the single-subject rule, see
Michael Gilbert, Single Subject Rules and the Legislative Process, 61 U. Pitt. L.
Rev 803 (2006).
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State Constitutions and the Basic Structure Doctrine
453
A. Conceptions of Entrenchment: Political Entrenchment versus
Judicial Entrenchment
Critics of the basic structure doctrine in India have suggested
that the doctrine is anti-democratic and lacks legitimacy in that it
allows judges to inject subjectivity into the process of identifying the
basic features of the Constitution.39 In addition, consideration of the
basic structure doctrine also implicates broader tensions between
popular sovereignty and judicial supremacy when considering the
possibility of activist state supreme courts invalidating amendments
on the grounds of a basic structure doctrine. Defenders of popular
sovereignty could argue that the adoption of a basic structure
doctrine would entail a move toward a model of judicial supremacy
that is normatively undesirable because it undermines popular
sovereignty. 40 Proponents of popular constitutionalism and popular
sovereignty-based models of constitutional change suggest that the
courts’ role in the amending process must be limited and deferential
to the political process.41
The processes by which the U.S. Constitution may be
amended have also been the subject of extensive debate in the United
States. Within the scholarship on constitutional law and politics,
39.
See Ramachandran, supra note 28, at 110. For an earlier criticism of
the Kesavananda decision, see T.R. Andhyarujina, Basic Structure of the
Constitution
Revisited,
The
Hindu
(May
21,
2007),
http://www.thehindu.com/todays-paper/tp-opinion/basic-structure-of-theconstitution-revisited/article1845048.ece; 2 H.M. Seervai, Constitutional Law of
India (2004); H.M. Seervai, Fundamental Rights Case at the Cross Road, 75 Bom.
L.R. J. 47 (1973). It is worth noting that constitutional theorist Pratap Bhanu
Mehta has defended the legitimacy of judicial review of constitutional
amendments in India, but has criticized the manner in which the Supreme Court
of India has articulated basic features and applied the doctrine. See Pratap Bhanu
Mehta, The Inner Conflict of Constitutionalism: Judicial Review and the Basic
Structure, in India’s Living Constitution: Ideas, Practices, Controversies 179
(Zoya Hasan et al., eds., 2002).
40
See Richard Albert, Nonconstitutional Amendments, 22 Can. J.
L. & Jurisprudence 5, 31–32 (2009).
41. See Mark Tushnet, Taking the Constitution Away from the Courts (1999);
Larry D. Kramer, “The Interest of the Man": James Madison, Popular
Constitutionalism, and the Theory of Deliberative Democracy, 41 Val. Univ. L.
Rev. 697 (2006); Larry D. Kramer, The People Themselves: Popular
Constitutionalism and Judicial Review (2004). Larry D. Kramer, Popular
Constitutionalism, circa 2004, 92 Cal. L. Rev. 959 (2004); Akhil R. Amar,
Philadelphia Revisited: Amending the Constitution Outside Article V, 55 U. Chi. L.
Rev. 1043 (1988).
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COLUMBIA HUMAN RIGHTS LAW REVIEW
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scholars like Bruce Ackerman and Akhil Amar have argued for
models allowing amendment of the U.S. Constitution outside of the
formal process set forth in Article V. 42 Significantly, in discussing
these less formal models of amendment, Ackerman highlights the
primacy of politics and partisan change in affecting constitutional
change and also recognizes the importance of democratic change and
popular sovereignty in judicial decision-making. 43 For example,
Ackerman’s theory of a “constitutional moment” describes episodes of
constitutional change and transition through “higher lawmaking”
outside the constitutionally prescribed methods and rules of
amendment. He asserts that transformational changes in the political
system are translated into constitutional changes through the
enactment of new policies, the appointment of judges, and shifts in
constitutional doctrine. 44 Balkin and Levinson also suggest that
constitutional change can be generated through the democratic
process through “partisan entrenchment,” either through the formal
amendment procedures set forth in Article V of the U.S. Constitution,
or through other processes.45
However, in arguing for the adoption of a variant of the basic
structure doctrine in California and other states, I suggest that
another phenomenon and concept—judicial entrenchment—merits
consideration as a mechanism through which courts may serve as a
counter-majoritarian check on the amendment process. 46 I define
judicial entrenchment as efforts by judges and constitutional courts to
entrench constitutional norms, principles, and provisions against
change by political regimes and popular majorities. In contrast to the
political entrenchment model, judicial entrenchment specifically
involves judge-led efforts to entrench constitutional norms.
42.
See 1 Bruce Ackerman, We the People: Foundations (1991); 2 Bruce
Ackerman, We the People: Transformations (1998); Amar, supra note 41.
43.
Ackerman, We the People: Transformations, supra note 42.
44.
Id.
45 .
Jack Balkin & Sanford Levinson, Understanding the Constitutional
Revolution, 87 Va. L. Rev. 1045, 1066–68 (2001); see also Jack Balkin & Sanford
Levinson, The Processes of Constitutional Change: From Partisan Entrenchment
to the National Surveillance State, 75 Fordham L. Rev. 489 (2006) (expanding
upon their partisan entrenchment theory).
46.
The term “constitutional entrenchment” has been defined loosely in the
literature as encompassing judicial entrenchment among other forms of
entrenchment. See Levy, supra note 22; see Miguel Schor, Constitutionalism
Through the Looking Glass of Latin America, 41 Tex. Int’l L. J. 1, 6–7 (2006).
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State Constitutions and the Basic Structure Doctrine
455
As illustrated in India, constitutional change can also be
catalyzed by judges through decisions that reshape and redefine the
contours of constitutional law. Constitutional change cannot and will
not always wait for political change, and judges may act to entrench
constitutional norms on their own. Judicial entrenchment may serve
as a viable alternative approach to entrenching constitutional norms.
I also argue here that judicial entrenchment may indeed be
normatively desirable as well, as justices can act in the defense of
constitutional norms that they fear may be destroyed without some
judicial action. The Indian Supreme Court justices who asserted the
basic
structure
doctrine
in
India
were
arguably
“constitutionalists”—jurists who believed they had a duty to act in
defense of the original constitutional framework.47
I argue here that judicial entrenchment can help serve a
number of crucial functions. First, through judicial entrenchment
courts can assert and defend the identity and integrity of
constitutions against radical political change. 48 While judicial
entrenchment may often be a part of a broader process of political
entrenchment wherein political elites appoint justices who help
effectuate a particular set of constitutional or policy goals,49 it may
also occur independently of—that is, not a direct result or translation
of—political change. In India, the Court’s decision in Kesavananda
was not the product of the appointment of judges of a certain
ideological worldview by a political regime, but rather represented
the reaction by a group of justices’ to Indira Gandhi’s perceived
flouting of the Indian constitution.50 The Kesavananda decision was
thus arguably on the leading edge of constitutional change—the
decision helped galvanize support for the idea of a basic structure
doctrine and limits on the amending power. Second, through the
process of judicial entrenchment, courts can play a crucial role in
policing the processes of constitutional change, by promoting and
requiring greater levels of deliberation for proposed amendments and
changes to constitutions.51
47.
I thank Professor Robert A. Kagan for this insight.
48.
See Gary J. Jacobsohn, Constitutional Identity, 68 Rev. of Pol. 361
(2006).
49.
See supra note 45; Hirschl, supra note 22.
50.
See Mate, infra note 205.
51 .
See Cain & Noll, supra note 17, at 1518; see also John Hart Ely,
Democracy and Distrust: A Theory of Judicial Review 101–104 (1980) (discussing
the role of the courts in checking the excesses of majority rule). On the contrast
456
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Third, judicial entrenchment can help prevent the abrogation
of fundamental rights, including the rights of minorities, by
majorities at the national and state level. As illustrated by the
exchange in Strauss between Chief Justice Ronald George and
Kenneth Starr, the existing revision-amendment framework
currently allows political majorities to eliminate core fundamental
rights from the constitution by simple amendment.52 The application
of the basic structure doctrine in California would help address the
shortcomings of the existing revision-amendment doctrine by
potentially providing stronger safeguards and requiring a higher level
of process for changes affecting fundamental rights provisions of the
California Constitution.
B. Popular Federalism v. Judicial (Rights) Federalism
While arguments for judicial entrenchment can be used
to (1) respond to arguments for popular sovereignty and
partisan-entrenchment
models
of
constitutional
change,
and (2) bolster the case for applying the basic structure doctrine in
California and other states, a second critique of the basic structure
doctrine may be that it has the potential to undermine the
“laboratory of democracy” model of “popular federalism” or “political
federalism.” 53 According to this model, popular sovereignty is the
basis for the legitimacy of state governments, and popular majorities
within states should have the leeway to experiment with different
models of governance. This may include the process of amendment
and constitutional change.54
Juxtaposed against this model of political or popular
federalism is the “rights federalism” or “judicial federalism” model.55
between procedural versus substantive models of judicial review of constitutional
amendment, see, e.g., Jackson, supra note 29.
52.
David Edwards & Stephen C. Webster, Arguing for Prop. 8, Ken Starr
says any right can be taken, The Raw Story (Mar. 5, 2009),
http://rawstory.com/news/2008/Ken_Starr_argues_for_Prop_8_0305.html.
53.
See Cain & Noll, supra note 17, at 1534 (citing New State Ice Co. v.
Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) (touting the virtues
of policy experimentation by states that occurs under federalism)).
54 .
See Cain & Noll, supra note 17 (discussing the process to change
constitutions).
55.
See id. at 1531 n. 82 (citing Robert F. Williams, Rights, in 3 State
Constitutions for the Twenty-first Century, 7–35 (G. Alan Tarr & Robert F.
Williams eds., 2006)); see also William J. Brennan, Jr., State Constitutions and the
2014]
State Constitutions and the Basic Structure Doctrine
457
According to this alternate conception of federalism, judges and
courts can play a crucial role in expanding the bundle of rights
available to citizens of certain states through judicial decision-making
and constitutional interpretation, above the federal “floor” of
constitutional rights.56 As Cain and Noll suggest, rights federalism
and the normative benefits of “credible commitments” both support a
stronger judicial role in the review of amendments that affect rights.57
The case for judicial entrenchment at the state level is
arguably stronger than at the federal level, given that state
constitutions are more malleable and can be easily changed.58 Indeed,
one can draw on Madison’s arguments in making the case for judicial
entrenchment of norms by state constitutional courts. Madison’s
original constitutional design sought to create a structural framework
to protect against the threat of usurpation of power and the tyranny
of majority rule against minority rights through the division of
powers between the federal and state governments and the creation
of an independent federal and state judiciary.59 Madison recognized
the potential for the tyranny of the majorities at the state level, and
suggested that a republican form of government at the state level
would help serve as a check on majority rule and protect the rights of
minorities.60
Significantly, the framers of the Constitution devised two
checks on potential tyranny of the majority at the state level. First,
the Constitution provided for an independent judiciary at both the
federal and state level. 61 Second, the framers also added the
Guarantee Clause to the Constitution, guaranteeing that each state
would have a “Republican Form of Government.” 62 Significantly,
direct democracy innovations across states—including the initiative
Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977) (arguing that
litigants should start using state constitutional arguments rather than only
relying on the U.S. Supreme Court because state constitutions have been
interpreted to afford greater constitutional rights than the federal constitution by
state courts).
56.
See Cain & Noll, supra note 17, at 1531.
57.
Id.
58.
Id.; see Cain and Noll, supra note 17, at 1536.
59.
See The Federalist No. 10 (James Madison).
60.
Id.
61.
See Kaitlyn Redfield-Ortiz, Government by the People for the People?
Representative Democracy, Direct Democracy, and the Unfinished Struggle for Gay
Civil Rights, 43 Ariz. St. L.J. 1367, 1374–1376 (2011).
62.
Id. (citing U.S. Const. art. IV, § 4).
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COLUMBIA HUMAN RIGHTS LAW REVIEW
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and referendum—run counter to the theoretical foundations and
structural goals of an independent judiciary and republican system of
government,63 and threaten minority rights.64
One of the clearest examples of the threats direct democracy
poses to fundamental rights is illustrated in the Proposition 8 saga in
California. In the following section, I revisit the California Supreme
Court’s decision in Strauss v. Horton upholding Proposition 8 as an
amendment, not a revision, analyzing how the various opinions in
that case construed the revision-amendment standard.
III. THE REVISION-AMENDMENT STANDARD IN STRAUSS V. HORTON
On November 4, 2008, a majority of voters in California
approved Proposition 8, an amendment adding the following
provision to Article I of the California Constitution: “Only marriage
between a man and woman is valid or recognized in California.”65
Proposition 8 overturned the California Supreme Court’s decision in
In re Marriage Cases, in which the Court had held that “same-sex
couples, as well as opposite-sex couples, enjoy the protection of the
constitutional right to marry embodied in the privacy and due process
provisions of the California Constitution.66
The petitioners in Strauss challenged the validity of
Proposition 8 on the grounds that it effected a revision of the
California Constitution. Under the California Constitution, revisions
require approval by a two-thirds majority vote in each house of the
legislature (or approval by a constitutional convention), followed by
approval by a majority via the initiative process. 67 In contrast,
amendments can be proposed by a two-thirds vote by the legislature68
or by initiative petition69, and must be approved by a simple majority
63 .
See id. at 1377. (citing Julian N. Eule, Judicial Review of Direct
Democracy, 99 Yale. L.J. 1503 (1990); Robin Charlow, Judicial Review, Equal
Protection and the Problem with Plebiscites, 79 Cornell L. Rev. 527, 534–36
(1994)).
64 .
See Redfield-Ortiz, supra note 61, at 1376 (citing Derek Bell, The
Referendum: Democracy’s Barrier to Racial Equality, 54 Wash. L. Rev. 1, 14–15
(1978)).
65.
Strauss v. Horton, 207 P.3d 48, 59 (Cal. 2009).
66.
Id.
67.
Cal. Const. art. XVIII.
68.
Cal. Const. art XVIII, § 1.
69.
Cal. Const. art XII, § 8; art XVIII, § 3.
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State Constitutions and the Basic Structure Doctrine
459
of the voters statewide. 70 In their briefs, petitioners, supported by
several amici, argued that Proposition 8 violated the California Equal
Protection Clause by denying the fundamental right of marriage to a
suspect class of individuals, a right recognized by the Court in the In
re Marriage Cases. 71 In their arguments, petitioners drew on earlier
decisions of the Court in which the Court articulated a test for
determining whether an amendment could be invalidated as a
revision. 72
Ultimately, the Court in Strauss upheld Proposition 8 as a
valid amendment.73 The majority relied on a line of earlier decisions
that articulated the standard for determining whether a particular
measure is an amendment or revision. In Amador Valley Joint Union
High School District v. State Board of Equalization,74 the Court first
articulated the contours of its revision-amendment test in a challenge
to Proposition 13, a measure that added Article XIII A to the
California Constitution. 75 The Court in Amador Valley upheld the
initiative and held that the Court was required to evaluate both the
quantitative and qualitative effects of a particular measure on
California’s constitutional scheme in order to determine whether it
was a revision or amendment.76 Initiatives that effected a significant
number of changes to multiple provisions and parts of the
Constitution could be deemed to be revisions under the quantitative
prong of the analysis.77 According to the Amador Court, under this
qualitative standard, measures that implemented “far reaching
changes in the nature of our basic governmental plan” could also
amount to a revision. 78 Because the Strauss Court found that
70.
Cal. Const. art XVIII, § 4.
71.
In re Marriage Cases, 183 P.3d 384 (Cal. 2008).
72.
Strauss v. Horton, 207 P.3d 48, 61–64 (Cal. 2009).
73.
Id. at 99–103, 105–11.
74.
Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization,
583 P.2d 1281 (1978).
75.
Id. It should be noted that the Court first articulated the distinction
between an amendment and revision in McFadden v. Jordan, 196 P.2d 787,
788–89 (Cal. 1948) (noting that a purported amendment to the California
Constitution that would repeal or substantially alter at least the majority of the
constitution’s articles could not be submitted to electors as an “amendment” but
rather was a “revision,” which must be proposed by convention). Cain & Noll,
supra note 17, at 1521–22 n. 25.
76.
Amador Valley, 583 P.2d at 1286
77.
Id.
78.
Id.
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COLUMBIA HUMAN RIGHTS LAW REVIEW
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Proposition 8 did not have a significant quantitative effect in terms of
the sheer number of constitutional provisions it affected or altered,
the Court focused on the qualitative impact of the measure. 79
According to the Strauss majority, relatively simple enactments can
amount to qualitative revisions of the California Constitution, where
those enactments “accomplish such far reaching changes in the
nature of [California’s] basic governmental plan.”80
In Raven v. Deukmeijian, 81 the Court clarified its
revision-amendment test in invalidating Proposition 115, a criminal
justice initiative that introduced a number of changes to the
California Constitution.82 Proposition 115 added several new sections
that effectively removed protections for the accused independent of
federal protections. For the first time in its history, the Court
invalidated an initiative on qualitative grounds, ruling that the
initiative altered the structure or organization of California’s
government, and the power of the judiciary to interpret the California
Constitution as providing greater protections for defendants’ rights
than the U.S. Constitution as interpreted by the U.S. Supreme
Court.83 Raven also implicitly adopted a federalism-based argument
in holding that a change to the California Constitution that prevented
it from operating as a document of independent force and effect apart
from the U.S. Constitution would also constitute a revision.”84
Justice Werdegar and Justice Moreno’s opinions in Strauss
diverged from the majority and offered a much broader conception of
what may constitute a revision under California law. Drawing on its
earlier decisions in Amador Valley and Raven, the majority held that
amendments that effect “far reaching changes in the nature of our
basic governmental plan,” 85 or, “substantially alter[s] the basic
governmental framework set forth in our Constitution” can constitute
qualitative revisions to the Constitution.86 The majority in Strauss,
consistent with earlier decisions of the Court in Amador and Raven,
held that “a change in the basic plan of California government” meant
a “change in its fundamental structure or the foundational powers of
79.
80.
81.
82.
83.
84.
85.
86.
Strauss v. Horton, 207 P.3d 48, 62, 98–102 (Cal. 2009).
Id.
Raven v. Deukmejian, 801 P.2d 1077 (Cal. 1990).
Id. at 1080–1083.
Id. at 1085–1089.
Id. at 1087.
Strauss v. Horton, 207 P. 3d 48, 85 (Cal. 2009) (George, C.J.).
Id.
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State Constitutions and the Basic Structure Doctrine
461
its branches.” 87 The Strauss majority thus adopted the narrow
definition of “basic governmental plan or framework” that focuses on
structural or organizational change—changes to the foundational
powers of the executive, legislative, and judicial branches.88
Justice Werdegar’s concurrence and Moreno’s dissent
diverged from the majority in holding that the majority’s definition of
qualitative revision was far too narrow. Both justices drew on the
Court’s earlier decision in Livermore v. Waite, in which the Court
observed that “the procedural requirements for constitutional
revisions were intended to preserve both “the substantial entirety of
the instrument” and “the underlying principles upon which it rests.”89
According to Justice Werdegar, an amendment effecting a change to a
foundational principle of individual liberty such as equal protection
could amount to a qualitative revision.90 However, Justice Werdegar
concurred with the majority in holding that Proposition 8 did not
constitute a revision because its effect was only to limit access to the
word or nomenclature “marriage” of marriage, and only constituted
mere “[d]isagreement over a single, newly recognized, contested
application of a general principle.”91
Compared to Justice Werdegar’s opinion, Justice Moreno’s
dissent offered a similar, albeit more robust conception of a
qualitative revision. Moreno’s dissenting opinion built on the Court’s
earlier decision in Livermore in arguing that equal protection
constitutes an underlying principle upon which the constitution rests.
Proposition 8 effectively abrogated that principle by denying the right
of marriage recognized by the Court in the In Re Marriage Cases.92
However, Moreno’s opinion failed to outline a clear method for
articulating and determining which provisions are fundamental or
foundational provisions for the purposes of the amendment-revision
distinction.
In supporting his argument, Justice Moreno held that
Proposition 8 would have “requir[ed] discrimination against a
minority group on the basis of a suspect classification” and thus
87.
Id.
88.
Id. at 99–106.
89.
See id. at 126–128, 132–133 (Werdegar, J., concurring; Moreno, J.,
dissenting) (citing Livermore v. Waite, 102 Cal. 113, 118 (Cal. 1894)).
90.
See id. at 127–128 (Werdegar, J., concurring).
91.
Id. at 124–128.
92.
Id. at 129–130 (Moreno, J., dissenting).
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COLUMBIA HUMAN RIGHTS LAW REVIEW
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struck “at the core of the promise of equality that underlies our
California Constitution.” 93 In advancing this argument, Justice
Moreno sought to establish that equal protection was a core or
foundational principle underlying the California Constitution.94
Moreno advanced several arguments or rationales in support
of his claim that equal protection should be recognized as a core or
foundational principle of the California Constitution. First, Moreno
offered historical and original-intent arguments in support of his
claim that equal protection is a core or foundational principle of the
California Constitution. Moreno cited to Professor Joseph Grodin’s
scholarship on the history and framing of the California Constitution
in arguing, “equal protection principles lie at the core of the
California Constitution and have been embodied in that document
from its inception.” 95 Additionally, Moreno noted that two
provisions—former Section 11 and Section 21 of the 1849
Constitution—highlighted the importance of equality within the
broader constitutional scheme.96 Former Section 11 of Article I of the
original 1849 Constitution stated, “All laws of a general nature shall
have a uniform operation” and Section 21 of Article I of the 1879
Constitution added, “nor shall any citizen, or class of citizens, be
granted privileges or immunities which, upon the same terms, shall
not be granted to all citizens.”97 These provisions were “substantially
the equivalent of the equal protection clause of the Fourteenth
Amendment to the United States Constitution.”98 In 1974, an express
equal protection clause was added to the California Constitution that
mirrors the language of the Fourteenth Amendment.99
Second, Justice Moreno emphasized the unique counter
majoritarian function of equal protection in protecting the
fundamental rights of minorities. According to Justice Moreno, in
light of this “inherently counter-majoritarian” nature of equal
protection under the California Constitution, the majority’s rule in
Strauss “weakens the status of our state Constitution as a bulwark of
93.
Id.
94.
Id. at 129–133.
95.
See id. at 129 (Moreno, J., dissenting) (citing Joseph Grodin et al., The
California State Constitution: A Reference Guide 47 (1993)).
96.
See id. at 129–130 (Moreno, J., dissenting).
97.
See id. at 129 (Moreno, J., concurring in part and dissenting in part).
98.
Id. (quoting Dept. of Mental Hygiene v. Kirchner, 62 Cal.2d 586, 588
(Cal. 1965); see Sail’er Inn, Inc. v. Kirby 5 Cal.3d 1, 15 n.13 (Cal. 1971).
99.
Strauss, 207 P.3d at 130–31.
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State Constitutions and the Basic Structure Doctrine
463
fundamental rights for minorities . . . .”100 Justice Moreno concluded
that none of the majority’s cited precedents held “that a modification
of the California Constitution constitutes a revision only if it alters
the structure of government,” 101 and that the Court’s decision in
Raven actually adopted a broad conception of constitutional revisions:
To the contrary, our recognition in Raven that
altering fundamental rights embodied in the [state]
Constitution could ‘substantially alter the substance
and integrity of the state Constitution as a document
of independent force and effect’ suggests just the
opposite. (Raven, supra, 52 Cal. 3d at p. 352, 276
Cal.Rptr. 326, 801 P.2d 1077.) Proposition 8 would
have a similar effect by emasculating the equal
protection clause of the California Constitution as a
provision of independent force and effect. Any
protection of a minority group recognized by this court
under the equal protection clause of our state
Constitution that was not recognized by the United
States Supreme Court under the federal Constitution
could be abrogated through the initiative process by a
simple majority of the voters.102
Third, Justice Moreno pointed to the broader importance of
the equal protection principle as a foundational principle of the rule
of law, given that equal protection serves as a crucial check on the
arbitrary exercise of government power. Moreno cited to the
incorporation of equal protection in earlier versions of the California
Constitution, and highlighted the centrality of equal protection and
its counter-majoritarian nature. 103 Moreno also drew on the Iowa
Supreme Court’s decision in Varnum for support for his argument for
entrenching provisions of a constitution:
Thus, it is not so much a discrete constitutional right
as it is a basic constitutional principle that guides all
legislation and compels the will of the majority to be
tempered by justice. The Iowa Supreme Court, in
affirming the constitutional right of gays and lesbians
to marry, recently recognized the importance of this
promise of equality, stating: “If gay and lesbian people
must submit to different treatment without an
100.
101.
102.
103.
Id. at 129.
Id. at 138 (emphasis added).
Id. at 137.
Id. at 137–39.
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COLUMBIA HUMAN RIGHTS LAW REVIEW
[45.2:362
exceedingly persuasive justification, they are deprived
of the benefits of the principle of equal protection
upon which the rule of law is founded.” (Varnum v.
Brien, supra, 763 N.W.2d 862, 905, italics
added.) . . . It is apparent, moreover, that limiting the
definition of revision only to changes in the structure
of government necessarily leads to the untenable
conclusion that even the most drastic and farreaching changes to basic principles of our
government do not constitute revisions so long as they
do not alter the governmental framework.
...
The majority’s holding essentially strips the state
Constitution of its independent vitality in protecting
the fundamental rights of suspect classes.104
While Moreno’s opinion articulated compelling justifications
for entrenching equal protection as a core constitutional
principle—one that can only be altered or changed through the
revision process—his opinion could have been strengthened by
drawing on insights from the basic structure doctrine. Although
Moreno discusses the history of equal protection and its addition as a
provision to the California Constitution in the 1970s, his opinion
provides little concrete guidance on how to assess whether particular
provisions constitute “basic features” of the California Constitution.
In the next section of this Article, I analyze the jurisprudence of the
Supreme Court of India articulating a “basic structure doctrine” as a
framework that could strengthen Moreno’s argument and provide a
stronger and more comprehensive framework for evaluating whether
measures constitute a revision or amendment under the California
Constitution.
IV. THE BASIC STRUCTURE DOCTRINE IN INDIA
In this section, I begin by tracing the development of the basic
structure doctrine in India. I then seek to “unpack” the doctrine by
distilling the methodological framework identified by the Supreme
Court of India for identifying basic features in the Indian
Constitution.
104.
Id. at 130, 138–39.
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State Constitutions and the Basic Structure Doctrine
465
A. Development of the Basic Structure Doctrine
Because the basic structure doctrine has arguably been most
developed in India, I focus my attention in this section on the
development of that doctrine in Indian cases.105
Curiously, the Indian basic structure doctrine’s intellectual
origins can be at least in part traced to German constitutional
traditions.106 Dieter Conrad, a German scholar and head of the law
department at the South Asia Institute of the University of
Heidelberg, first introduced the concept of the basic structure to
Indian jurists in a lecture on the “Implied Limitations of the
Amending Power” to the Banaras Hindu University Law Faculty.107
Conrad based his lecture on insights drawn from civil law and the
German Constitution—the Basic Law of 1949. 108 The Basic Law
contained certain “eternal clauses” which provided that the German
Constitutional Court could invalidate constitutional amendments
that altered or changed the Basic Law. Included in these clauses were
Article 1 (human life) and Article 20 (basic principles of popular
sovereignty).109
105.
This section draws on parts of an earlier book chapter I authored on
the basic structure doctrine in India. See Manoj Mate, Priests in the Temple of
Justice: The Indian Legal Complex and the Basic Structure Doctrine, in Fates of
Political Liberalism in the British Post-Colony: The Politics of the Legal Complex
(Halliday, Karpik, and Feeley, eds.. 2012).
Variants of the basic structure doctrine have also been developed and
applied by high courts in South Africa, Turkey, and other polities. See Albert,
supra note 30. The South African Constitutional Court invalidated several
provisions of the original draft of the South African Constitution as contravening
principles of equality. Certification of the Constitution of The Republic of South
Africa 1996 (CCT 23/96) (S.Afr.) The Turkish Supreme Court has also developed
its own version of the basic structure doctrine, and recently invalidated a
constitutional amendment enacted by the Turkish Government that would have
allowed women to wear headscarves in public. Ozan Varol, The Origins and
Limits of Originalism: A Comparative Study, 44 Vand. J. Transnat’l L.1239
(2011). In South America, several high courts have also developed variants of the
basic structure doctrine. See, e.g., Miguel Schor, Constitutionalism Through the
Looking Glass of Latin America, 41 Tex. Int’l L. J. 1, 6–7 (2006).
106.
M.P., Singh, Bridging Legal Traditions, Frontline, Sept. 14, 2001.
107.
Id.
108.
Id.
109 .
E. Spevack, American Pressures on the German Constitutional
Tradition: Basic Rights in the West German Constitution of 1949, 10 Int’l J. Pol.
Culture & Soc’y 411 (1999); Donald Kommers, The Federal Constitutional Court
in the German Political System, 26 Comp. Pol. Stud. 470 (1994). See Albert, supra
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At the time of Conrad’s lecture, most Indian jurists were not
familiar with the basic structure doctrine, in part because the
doctrine was rooted in civil law. In his lecture, Conrad noted the need
for imposing limitations on the amending power, particularly given
Germany’s experience with Nazi rule, and presciently suggested that
India might need such a doctrine in the future to deal with proposed
changes to norms of democratic government, fundamental rights, and
constitutionalism. 110 Ultimately, Conrad’s theoretical argument
perspective would be adopted and deployed by Chief Justice K. Subba
Rao in the landmark decision of Golak Nath v. State of Punjab, in
which the Supreme Court of India, for the first time, asserted the
power to invalidate constitutional amendments that abrogated the
fundamental rights provisions of the Indian Constitution.111
1. Golak Nath (1967): Fundamental Rights and the
Amending Power
In Golak Nath, the petitioners challenged the validity of the
First, Fourth, and Seventeenth Amendments of the Indian
Constitution, through which the Government had enacted the “Ninth
Schedule,” and added subsequent land reform provisions to the
Schedule in order to immunize them from judicial review. In earlier
decisions, the Indian Supreme Court held that Parliament’s power to
amend the Constitution under Article 368 (the constitutional
provision governing amendment of the constitution) was unlimited.112
Turning away from its earlier decisions in Sankari Prasad and Sajjan
Singh, the majority in Golak Nath ruled that Parliament cannot
enact constitutional amendments that violate the fundamental rights
provisions of the Constitution. Chief Justice K. Subba Rao and the
note 30 (explaining that the Federal Constitutional Court of Germany to have the
power to review and invalidate the constitutionality of amendments that violate
existing provisions of the Basic Law, based on principles of constitutional
coherence and constitutional supremacy).
110.
Abdul Gafoor Noorani, Public Law in India 278–79 (1982).
111.
Golak Nath v. State of Punjab, (1967) 2 S.C.R. 762 (India).
112.
In Sankari Prasad v. Union of India, A.I.R. 1951 S.C. 455 (India), the
Court had rejected the argument that there were limitations on the amending
power, and held that that “there was a clear distinction between ordinary law
made in exercise of legislative power, and constitutional law made in exercise of
constituent power.” Similarly, in Sajjan Singh v. State of Rajasthan, A.I.R. 1965
S.C. 845 (India), the Court adjudicated a challenge to the constitutionality of the
Seventeenth Amendment. In upholding the amendment, the Court reaffirmed its
earlier decision in Sankari Prasad.
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State Constitutions and the Basic Structure Doctrine
467
majority of the Court held that Article 368 set forth the procedures
for amendment 113 and went on to hold that amendments enacted
under Article 368 were ordinary “laws” under Article 13, and thus
could be subject to judicial review.114 The Court also ruled that it was
within Parliament’s power to convene a new Constituent Assembly
for the purposes of amending the Constitution. Finally, in a strategic
move, the Court invoked the doctrine of “prospective overruling,”
which meant that the ruling would only apply to future amendments
(and that the First, Fourth and Seventeenth Amendments, though
deemed to be unconstitutional, would remain in effect).115 Writing in
dissent, Justice Wanchoo, argued that the “argument of fear”
advanced by Subba Rao and the majority constituted a political, and
113.
Golak Nath, (1967) 2 S.C.R. at 778–89. Article 368 of the Indian
Constitution originally provided as follows:
(1) Notwithstanding anything in this Constitution, Parliament
may in exercise of its constituent power amend by way of
addition, variation or repeal any provision of this Constitution
in accordance with the procedure laid down in this article.
(2) An amendment of this Constitution may be initiated only by
the introduction of a Bill for the purpose in either House of
Parliament, and when the Bill is passed in each House by a
majority of the total membership of that House and by a
majority of not less than two-thirds of the members of that
House present and voting, it shall be presented to the President
who shall give his assent to the Bill and thereupon the
Constitution shall stand amended in accordance with the terms
of the Bill:
Provided that if such amendment seeks to make any
change in –
(a) article 54, article 55, article 73, article 162 or
article 241, or
(b) Chapter IV of Part V, Chapter V of Part VI, or
Chapter I of Part XI, or
(c) any of the Lists in the Seventh Schedule, or
(d) the representation of States in Parliament, or
(e) the provisions of this article,
The amendment shall also require to be ratified by the
Legislatures of not less than one-half of the States by
resolutions to that effect passed by those Legislatures
before the Bill making provision for such amendment
is presented to the President for assent.
(3) Nothing in article 13 shall apply to any amendment made
under this article.
114.
Golak Nath, (1967) 2 S.C.R. at 777–79.
115.
Golak Nath, (1967) 2 S.C.R. at 788–89; Sathe, supra note 28, at 17.
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not legal argument.116 In line with earlier precedent, Wanchoo and
the other dissenting justices held that there could be no limitations
on the power of amendment under Article 368.117
2. Kesavananda Bharati v. Kerala (1973): The Assertion of
the Basic Structure Doctrine
In Kesavananda,118 the Court heard a series of challenges to
the Twenty-Fourth, Twenty-Fifth, and Twenty-Ninth Amendments.
The case was based on the claims of Swami Kesavananda, the head of
a monastery in Kerala, who had challenged the attempts of the
Kerala state government to impose restrictions on the management of
his property. 119 The Twenty-Fourth Amendment sought to overrule
Golak Nath by reasserting Parliament’s unlimited power to amend
the Constitution under Article 368, and held that such amendments
were not ordinary “laws” under Article 13, and could not be subject to
judicial review by the Court. The Twenty-Fifth Amendment made
compensation associated with land acquisition laws nonjusticiable,
and stipulated that laws enacted to give effect to the Directive
Principles could not be challenged in Court. The Twenty-Ninth
Amendment had placed the 1969 Kerala Land Reform Act in the
Ninth Schedule to immunize it from judicial review.120 In a decision
consisting of eleven separate opinions, a closely divided 7-6 bench
overruled its earlier decision in Golak Nath and held that Parliament
116.
According to several senior advocates who argued before the court in
Golak Nath, Chief Justice Subba Rao was influenced by Conrad’s argument
although the Court ultimately did not hold that there were implied limitations on
the amending power. See Granville Austin, Working a Democratic Constitution: A
History of the Indian Experience 200–02 (1994). In addition, Subba Rao’s decision
was also influenced by his own fear that the Congress Party government would
continue to infringe upon the fundamental rights provisions, particularly property
rights. Id. He noted that the emergency rule that had been declared in 1962 was
still in force, and that the suspension of the rights contained in Articles 14, 19, 21,
and 22 constituted a form of “constitutional despotism.” Id at 200. Subba Rao was
apprehensive about the Congress party’s past record of enacting amendments that
infringed the fundamental rights, and with the death of Nehru in 1964, Subba
Rao feared future damage to the fundamental rights by the “brute majority” of the
Congress party in the future under the leadership of Indira Gandhi. Id.
117.
Golak Nath, 2 S.C.R. at 803–05, 852–58, 866–71 (Justices Wanchoo,
Bachawat and Ramaswami).
118.
Kesavananda Bharati v. State of Kerala, (1973) 4 S.C.C. 225 (India).
119.
Austin, supra note 116, at 258–59.
120.
Austin, supra note 116, at 266–67.
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State Constitutions and the Basic Structure Doctrine
469
could amend the fundamental rights provisions. 121 However, the
Court also found that under Article 368, Parliament could not enact
constitutional amendments that altered the “basic structure” of the
Indian Constitution.122
Seven justices upheld the Twenty-Fourth and Twenty-Ninth
amendments in their entirety and the first part of the Twenty-Fifth
Amendment. However, the Court held that the second part of the
Twenty-Fifth Amendment was invalid and violated the basic
structure of the Constitution.123 The second part had added Article
31C to the Constitution, which provided that “no law containing a
declaration that is for giving effect to” the directive principles under
Articles 39(b) and (c) shall be reviewed by a Court to determine
whether the law gives effect to the directive principles.124
The majority held that Article 368 barred Parliament from
abrogating the fundamental rights because the Article contained
“implied limitations” that did not allow Parliament to alter or destroy
the “basic structure” of the Constitution. 125 In contrast, six other
judges, led by Justice A.N. Ray, held that Article 368 did not contain
any implied limitations on the power of constitutional amendment,
and that Parliament could amend any provision of the Constitution.126
The “swing” vote for the majority was Justice H.R. Khanna. While
Khanna argued that Parliament, in exercising its constituent power
of amendment, must leave “the basic structure or framework of the
Constitution” intact, 127 he also agreed with the second bloc of six
judges in voting to uphold Article 31C.128
Although there was not necessarily a clear majority
consensus, nine justices of the Court signed a “summary” statement
of the opinion of the Court. Chief Justice Sikri drafted the summary
statement of the Court’s opinion based on the statement of
conclusions in Khanna’s opinion, in which Justice Khanna recognized
121.
Ramachandran, supra note 28, at 113–14.
122.
Id.
123.
Kesavananda, (1973) 4 S.C.C. at 1007.
124.
Kesavananda, (1973) 4 S.C.C. at 392.
125.
A. G. Noorani, Behind the Basic Structure Doctrine, Frontline, May 11,
2001, at 95; see Sathe, supra note 28.
126.
Noorani, supra note 125.
127.
See Andhyarujina, supra note 39.
128.
Kesavananda, (1973) 4 S.C.C. at 739, 767–69; Krishnaswamy, supra
note 28, at 27 (citing N.A. Palkhivala, “Fundamental Rights Case: Comment,”
(1973) 4 SCC (Jour.) 57).
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that there were limits on the amending power.129 The Kesavananda
Court’s central holding was that under Article 368, Parliament could
not enact constitutional amendments that altered or destroyed the
“basic structure” or essential elements of the Indian Constitution.130
Significantly, although there was a consensus in the decision on the
recognition of a basic structure doctrine, the justices diverged on
what features might constitute basic features.131
Chief Justice Sikri’s opinion provided arguably the most
detailed analysis in establishing textual and structural support for
the basic structure doctrine, as well as guidance for determining what
features were part of the basic structure of the constitution. Sikri
held that there were implied limitations on the amending power as
set forth in Article 368, and that this provision must be interpreted in
light of the entire structure of the Indian Constitution, as well as the
original intent of the framers. 132 Article 368 provided that most
sections of the Indian Constitution could be amended by a majority
vote of both houses of Parliament (the Lok Sabha and Rajya Sabha)
and the assent of the President. However, as Sikri noted, Article 368
required an additional level of process for the amendment of certain
provisions—ratification by at least half of the state legislatures of the
states specified in Parts A and B of the First Schedule of the
Constitution.133 These provisions included:
(a) Article 54, Article 55, Article 73, Article 162 or
Article 241, or
(b) Chapter IV of Part V, Chapter V of Part VI, or
Chapter I of Part XI, or
(c) any of the Lists in the Seventh Schedule, or
(d) the representation of States in Parliament, or
(e) the provisions of this article.
Sikri argued that the omission of certain Articles from this
proviso illustrated that the framers intended to have certain implied
limitations on the amending power. 134 For example, Article 54
129.
Kesavananda, (1973) 4 S.C.C. at 1007; Krishnaswamy, supra note 28,
at 27.
130.
Kesavananda, (1973) 4 S.C.C. at 1007.
131.
Id. at 366 (Sikri, J.), 454 (Shelat,J., Grover, J.), 483–85 (Hegde, J. ,
Mukherjea, J.), 637–39 (Reddy). See id. at 26–37.
132.
Id. at 315–20.
133.
Id. at 313–15.
134.
Krishnaswamy, supra note 28, at 31–35 (citing Kesavananda, (1973) 4
S.C.C. at 313–329).
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State Constitutions and the Basic Structure Doctrine
471
provided for the procedure and manner of election of the President of
India by an electoral college consisting of (a) the elected members of
both Houses of Parliament; and (b) the elected members of the
Legislative Assemblies of the States. Article 55 prescribes the manner
of election of the President. And yet, as Sikri observed, Article 52
(stipulating that there shall be a President of India), and Article 53
(vesting the executive power of the Union in the President of India
and directing the exercise of that power), were omitted from the
proviso.135 According to Sikri, this illustrated the framers’ intent that
these provisions could not be amended or altered.136
Sikri also argued that Article 368 of the Constitution must be
interpreted using a structural mode of interpretation that took
account of the Preamble, the Directive Principles, and the noninclusion of certain provisions. 137 According to this approach, Sikri
argued for a limited conception of the amending power:
It seems to me that reading the Preamble, the
fundamental importance of the freedom of the
individual, indeed its inalienability, and the
importance of the economic, social and political justice
mentioned in the Preamble, the importance of
directive principles, the non-inclusion in Article 368 of
provisions like Articles 52, 53 and various other
provisions to which reference has already been made
an irresistible conclusion emerges that it was not the
intention to use the word “amendment” in the widest
sense.138
Chief Justice Sikri held that the basic structure
included:
(i) Supremacy of the Constitution, (ii) Republican and
democratic form of government, (iii) Secular character
of the Constitution, (iv) Separation of powers between
the
legislature,
the
executive
and
the
judiciary, (v) Federal character of the Constitution.
The above structure is built on the basic foundation,
i.e. the dignity and freedom of the individual. This is
135.
See Kesavananda, (1973) 4 S.C.C. at 313–315.
136.
See id. at 314–16, 338–42, 345–46, 405.
137 .
See Krishnaswamy, supra note 28, at 28–38 (citing Kesavananda,
(1973) 4 S.C.C. at 335).
138.
Ramachandran, supra note 28, at 114 (citing Kesavananda, (1973) 4
S.C.C. at 405).
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of supreme importance. This cannot by any form of
amendment be destroyed.”139
Sikri’s opinion thus suggested a hierarchy of constitutional
provisions in the Indian Constitution—that there were effectively
three categories of constitutional provisions in the Indian
Constitution in terms of their status as entrenched provisions.140 One
category or subset of provisions can be amended by the normal
process requiring ratification by a majority vote in both houses of
Parliament and the assent of the President.141 A second category of
provisions—listed in Article 368—requires parliamentary and
presidential ratification and ratification by at least half the states.142
A third category of provisions or principles—those listed by Sikri as
basic features—cannot be amended by normal constitutional
processes, and presumably can only be altered or changed by a new
Constituent Assembly with the power to create a new or modified
Constitution.143
Other justices articulated a more expansive conception of the
basic structure doctrine. In addition to the foregoing features
identified by Justice Sikri, Justice Shelat held that “the unity and
integrity of the nation,” and the mandate to build a welfare state
were also basic features of the Constitution.144 Justices Hegde and
Mukherjea held that the sovereignty of India was also a fundamental
feature of the Constitution, and Justice Reddy held that as a
sovereign democratic republic, Parliamentary democracy and the
three organs of the State form the basic structure of the
Constitution.145 In terms of its historic importance, most scholars of
Indian constitutional law today have recognized and noted the
significance of this moment in India’s political and constitutional
history, though the immediate reaction to the decision was more
hostile.146
139.
Id.
140.
Kesavananda, (1973) 4 S.C.C. at 313–329.
141.
Id.
142.
Id.
143.
Id.
144.
Ramachandran, supra note 28, at 114 (citing Kesavananda, (1973) 4
S.C.C. at 406–63 (Shelat & Grover, JJ. concurring)).
145.
Id. at 115.
146. See, e.g., Upendra Baxi, The Constitutional Quicksands of Kesavananda
Bharati and the Twenty-Fifth Amendment, (1974) 1 S.C.C. (Jour.) 45 (noting that
the decision represented the “constitution of the future”); P.K. Tripathi,
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State Constitutions and the Basic Structure Doctrine
473
3. The Election Case: A Framework for Identifying Basic
Features
The basic structure doctrine was invoked by the Court during
the Emergency rule regime of Indira Gandhi (1975-1977) in the case
of Smt. Indira Nehru Gandhi v. Raj Narain,147 which dealt with a
challenge to the Thirty-Ninth Amendment. This amendment was
passed in response to a decision of the Allahabad High Court setting
aside Prime Minister Indira Gandhi’s election on the grounds that
her campaign had committed a “corrupt practice.”148 The amendment
was enacted to retroactively validate Gandhi’s election by
superseding the applicability of all previous election laws and
immunizing all elections involving the Prime Minister or Speaker of
the Lok Sabha from judicial review. 149 Gandhi appealed to the
Supreme Court and requested an unconditional stay of the High
Court’s decision. A bench led by Justice V.R. Krishna Iyer denied
Gandhi’s request for a stay, and held that while Gandhi could
continue to hold office, she would not be able to participate in
parliamentary debate or have voting power.150
One day later, on June 25, 1975, Gandhi declared Emergency
Rule.151 During the Emergency, the Indian Supreme Court acquiesced
to the regime’s suspension of democratic rule and fundamental rights,
including the suspension of habeas corpus for detainees under the
Maintenance of Internal Security Act152 and to the regime’s attacks on
Kesavananda Bharati v. State of Kerala—Who Wins?, (1974) 1 S.C.C. (Jour.) 3;
H.M. Seervai, The Fundamental Rights Case at the Crossroads, LXXV Bombay
Law Reporter (Jour.) 47 (1973); Andhyarujina, supra note 39.
147.
Ramachandran, supra note 28, at 115; Indira Nehru Gandhi v. Raj
Narain, 1975 Supp. S.C.C. 1 (India).
148.
Ramachandran, supra note 28, at 115.
149.
Id. at 116.
150.
See id. at 116–17.
151.
Id. at 115.
152.
See Additional Dist. Magistrate Jabalpur v. Shivakant Shukla, A.I.R.
1976 S.C. 1207 (India) (upholding the government’s suspension of habeas corpus
under MISA, and ruling that no individual had locus standi to file a writ petition
under Article 226 (for habeas corpus or any other writ or order) to challenge the
legality of an order of detention on the grounds of illegality or mala fides); Union
of India v. Bhanudas, A.I.R. 1977 S.C. 1027 (India) (holding that the Supreme
Court cannot examine whether conditions of detention were in compliance with
prison legislation and legal and constitutional requirements during a period of
Emergency rule).
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the Court’s jurisdiction and power.153 Moreover, the Supreme Court
upheld the regime’s suspension of habeas corpus and preventive
detention regime in the Shiva Kant Shukla and Bhanudas
decisions.154
However, the five-bench panel in Indira Nehru Gandhi v. Raj
Narain (hereinafter the “Election Case”) ultimately accepted and
applied the basic structure doctrine to invalidate clauses 4 and 5 of
Article 329A, 155 added by the Thirty-Ninth Amendment. 156 The
justices in the majority went beyond the Kesavananda decision in
articulating conceptions of what was included within the basic
structure doctrine. Justice Khanna asserted that the clause violated
the basic structure of the Indian Constitution, by contravening the
“democratic set-up” of the Constitution and the “rule of law,” because
democracy requires that “elections should be free and fair.”157 Justice
Chandrachud invalidated the clause on the grounds that it violated
the basic structure in that it represented “an outright negation of the
right to equality,” and was “arbitrary, and calculated to damage or
destroy the rule of law.”158 Justice Matthew held that Article 329A
was invalid “because constituent power cannot be employed to
exercise judicial power.”159
Justice Chandrachud’s decision offered perhaps the most
comprehensive and concrete approach for determining which rights
were part of the basic structure doctrine. According to Justice
Chandrachud, in identifying whether a feature is part of the basic
structure, “one has perforce to examine in each individual case the
place of the particular feature in the scheme of our Constitution, its
object and purpose, and the consequences of its denial on the integrity
of the Constitution as a fundamental instrument of country’s
governance.” 160 Applying this standard, Justice Chandrachud held
153.
Bhanudas, A.I.R. 1977 S.C. at 1027 (India); see Sathe, supra note 28,
at 73–76.
154 Shukla, A.I.R. 1976 S.C. at 1207; Bhanudas, A.I.R. 1977 S.C. at
1044–49.
155.
Indira Gandhi v. Raj Narain (1975) Supp S.C.C. 1, 88–94, 114–115
(India) (Khanna, J.); id. at 245–50, 258–62 (Chandrachud, J.).
156.
Baxi, supra note 4, at 57–58 (citing Indira Nehru Gandhi, (1975)
Supp. S.C.C. at 90–92).
157.
Indira Nehru Gandhi, (1975) Supp. S.C.C. at 90–92.
158.
Id. at 257–58.
159.
Id. at 120–129.
160.
Id. at 664.
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State Constitutions and the Basic Structure Doctrine
475
that the following features formed a part of the basic
structure: “(i) India is a Sovereign Democratic Republic; (ii) Equality
of status and opportunity shall be secured to all its citizens; (iii) The
State shall have no religion of its own and all persons shall be equally
entitled to freedom of conscience and the right freely to profess,
practice and propagate religion and that (iv) the Nation shall be
governed by a Government of laws not of men.”161
4. Minerva Mills (1980): Entrenching Constitutionalism as
Basic Structure
While the Kesavananda decision may have represented one of
the boldest assertions of judicial authority, it ultimately imperiled
judicial independence and power, by leading to the Gandhi
government’s supersession of the three senior-most justices and
elevation of the pro-government justice A.N. Ray to chief justice. The
decision also indirectly led to the declaration of Emergency Rule by
Indira Gandhi’s regime in 1975, during which the government
enacted
the
Thirty-Ninth
and
Forty-Second Amendments. These amendments dramatically curbed
judicial review and effectively overrode the Court’s decision in
Kesavananda. However, in the election of 1977, the Congress Party
was defeated by the Janata Party coalition. The mandate of the
elections was a clear one: the Indian electorate had rejected the
excesses of Indira Gandhi’s Emergency regime.162 The Janata Party
coalition had campaigned on an agenda calling for the lifting of the
Emergency and repeal of the draconian MISA, the rescinding of the
constitutional amendments enacted by the Emergency regime,163 and
the restoration of democracy, fundamental freedoms, and
constitutionalism.164
161.
Id. at 665–66.
162.
See Austin, supra note 116, at 391–394, 1999 (discussing the political
implications of the 1977 elections for the constitutional reforms of the Gandhi
regime).
163.
The Maintenance of Internal Security Act (MISA) had originally been
enacted in 1971 by the Gandhi Congress regime in order to deal with Naxalite
agitation in the northeastern states, but was renewed to deal with agitation by
opposition leaders prior to and during the Emergency.
164.
See Madhu Limaye, Janata Party Experiment: An Insider’s Account of
Opposition Politics: 1975–1977 (1994); Austin, supra note 116, at 1999. The
Emergency regime passed a series of amendments that sought to restore
parliamentary supremacy, and restrict individual rights: the 38th, 39th, 40th, and
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In Minerva Mills v. Union of India, 165 the Court heard a
challenge from the owners of the Minerva Mills to the Sick Textiles
Nationalization Act of 1974, which had been added to the Ninth
Schedule of the Constitution through the Thirty-Ninth Amendment,
thus immunizing the Act from judicial review.166 Pursuant to the Act,
the National Textiles Corporation had taken over textiles mills in
Karnataka, on the grounds that these mills were being “managed in a
manner highly detrimental to the public interest.”167
The majority in Minerva Mills ultimately invalidated Sections
4 and 55 of the Forty-Second Amendment as violative of the basic
structure of the Indian constitution.168 Section 4 had amended Article
368 so as to subordinate the fundamental rights in Articles 14 and 19
to the directive principles. And Section 55 had amended Article 31-C
to provide that no law enacted to advance the Directive Principles
could be challenged as violative of the fundamental rights in Articles
42nd amendments. The 42nd Amendment was arguably the most controversial of
the four amendments. The amendment fortified Central government power by
authorizing the government to dissolve state governments under certain
conditions, and attacked judicial power, by barring judicial review of the 1971
elections (including Gandhi’s), overturning the Court’s landmark decision in
Kesavananda by stripping the Court’s power to review the validity of
constitutional amendments, and requiring two-thirds majorities of Court benches
to invalidate statutes. In addition, the amendment barred the Supreme Court
from reviewing the validity of state laws (and state courts from reviewing the
validity of central laws); stipulated that implementation of the Directive
Principles would take precedence over enforcement of the Fundamental Rights;
mandated seven-judge benches for cases dealing with constitutional issues; and
stipulated that certain types of anti-national activities would not be protected by
Article 19’s provisions for free speech and expression. Burt Neuborne, The
Supreme Court of India, 1 Int’l. J. Const. L. 476, 494–495 (2003).
165.
1981 S.C.R (1) 206 (India).
166.
Id. at 639.
167.
Ramachandran, supra note 28, at 118. This was in part a result of a
fundamental shift that had occurred in the post-Emergency period. Previous
political divisions were ameliorated by both the Senior Advocates and Court’s
reframing of the core issue in Minerva Mills as one involving the validity of the
Emergency regime’s enactment of controversial constitutional amendments that
had suspended fundamental rights and curbed judicial power. In addition, the
previously divisive issue of land reform and property rights was effectively
neutralized by the Janata Government’s removal of the right to property as a
fundamental right in the Constitution in the 44th Amendment.
168.
This represented a bold assertion of judicial power, given that the
petitioner had not challenged the validity of Forty-Second Amendment in this
matter. Andhyarujina, supra note 39, at 22.
2014]
State Constitutions and the Basic Structure Doctrine
477
14, 19, or 31.169 Writing for the majority, Chief Justice Chandrachud
reaffirmed the basic structure doctrine as set forth in Kesavananda
and applied in the Indira Gandhi case, and found that both Sections
were unconstitutional in that they sought to expand the amending
power to enable the Government to repeal or abrogate the
Constitution or destroy its basic features, given that “a limited
amending power is one of the basic features of our Constitution.”170
The Minerva Mills decision thus swept away the final remnants of
Gandhi’s emergency rule regime.
In addition to identifying a limited amending power as one of
the basic features of the Indian Constitution, Justice Chandrachud
built on his earlier opinion in the Election Case and proceeded to
articulate which constitutional rights and provisions were included in
the basic structure doctrine. Chandrachud further held that the
fundamental rights protections in Articles 14 (equality), 19 (the seven
freedoms), and 21 (due process, life and liberty) formed a “golden
triangle” that was basic to the Indian Constitution, along with the
Directive Principles of State Policy decision in Minerva Mills. While
observing that this golden triangle of fundamental rights was a core
part of the basic structure, Chandrachud’s decision also carefully
struck a delicate balance between the Directive Principles and the
fundamental rights provisions of the Constitution. 171 Thus,
Chandrachud noted that
the Indian Constitution is founded on the bedrock of
the balance between Parts III and IV. To give
absolute primacy to one over the other is to disturb
the harmony of the Constitution. This harmony. . .
between fundamental rights and directive principles
is an essential feature of the basic structure of the
constitution.172
Additionally, Justice Chandrachud advanced an identitybased argument for defining what features were part of the basic
structure doctrine.173 Justice P.N. Bhagwati, in his separate opinion
concurred with the majority that a limited amending power and
169.
Sathe, supra note 28, at 87.
170.
Minerva Mills, 1981 S.C.R, (1) at 240.
171 .
See Upendra Baxi, Courage, Craft and Contention: The Indian
Supreme Court in the Eighties (1985).
172.
Minerva Mills, 1981 S.C.R. (1) at 255.
173.
Id. at 253–55.
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judicial review were part of the basic structure.174 However, Bhagwati
differed from the majority in holding that the amended Article 31C
did not violate the basic structure of the Indian Constitution.175
In Waman Rao v. Union of India, (the companion case to
Minerva Mills), the Court reaffirmed the basic structure doctrine and
held that all amendments enacted after the Kesavananda decision of
April 24, 1973, including laws added to the Ninth Schedule, were
subject to judicial review under the basic structure doctrine. 176
Applying the basic structure doctrine, instead of relying solely on
precedent, the Court upheld Articles 31A and 31C, added by the First
and Fourth Amendments, on the grounds that these amendments
were enacted to effectuate the Directive Principles contained in
Articles 39(b) and (c). 177 The Court also upheld the unamended
portion of Article 31C (the amended version had been struck down in
Minerva Mills as consistent with the basic structure doctrine, ruling
that “laws passed truly and bona fide for giving effect to directive
principles contained in clauses (b) and (c) of Article 39” would fortify,
not damage, the basic structure.
5.
From Bommai to Coelho: Expanding and
Reinforcing the Basic Structure Doctrine
In subsequent decisions, the Indian Supreme Court built on
the basic structure doctrine in articulating new principles that were
deemed to be “basic features” of the Indian Constitution. At the same
time, the Indian Supreme Court also further developed the
methodology for identifying basic features and for identifying how to
assess the impact of amendments on principles or rights provisions.
174.
Id.
175.
Minerva Mills, 1981 S.C.R. (1) at 264–80.
176.
Waman Rao v. Union of India, (1981) 2 SCC 362 (India).
177.
Id. at ¶ 58; Ramachandran, supra note 28, at 121. Sections (b) and (c)
of Article 39 (Directive Principles) provide that:
Article 39. Certain Principles of Policy to be Followed by the
State—The State shall, in particular, direct its policy towards
securing—
(b) that the ownership and control of the material resources of
the community are so distributed as best to subserve the
common good;
(c) that the operation of the economic system does not result in
the concentration of wealth and means of production to the
common detriment.
2014]
State Constitutions and the Basic Structure Doctrine
479
In the Bommai decision, the Court adjudicated a controversy
involving secularism, federalism and the basic structure doctrine. In
1992, a coalition of Hindu right forces launched a campaign that
ultimately resulted in the demolition of the Babri Masjid, a mosque
that was alleged to have been built on the site of an ancient Hindu
temple, with the acquiescence and support of the BJP government in
Uttar Pradesh, which led to heightened communal violence
throughout India.178 In response, exercising the emergency powers of
President’s rule under Article 356, the President dismissed the BJP
governments and dissolved legislative assemblies in six states.179
In Bommai, the Court proceeded to uphold the dismissals of
three state governments under Article 356 of the Constitution on the
grounds that the President’s actions were necessary to save the basic
structure of the Constitution. Since the state governments were not
functioning in accordance with secularism, which the Court ruled to
be part of the basic structure of the Constitution, the President acted
within his authority.180 At the same time, the Court also held that
both democracy and federalism were basic features of the
constitution, and that the Court could review the constitutionality of
Presidential proclamations under the emergency powers of Article
356 to ensure that these basic features were not subverted.181
The Bommai decision was unique in that it justified and
upheld the exercise of government power, rather than invalidating an
amendment, under the basic structure doctrine. The Court thus
expanded its power to include the review and scrutiny of political
178.
S.R. Bommai v. Union of India, (1994) 3 S.C.C. 1 (India). See Gary
Jacobsohn, The Wheel of Law: India’s Secularism in Comparative Constitutional
Context (2003).
179.
Krishnaswamy, supra note 28, at 50 (citing S.R. Bommai, (1994) 3
S.C.C. at 149).
180.
See Sathe, supra note 28, at 96–98; Gary Jacobsohn, The Wheel of
Law: India’s Secularism in Comparative Constitutional Context 130–41, 146–56
(2003).
181.
Krishnaswamy, supra note 28, at 50. The Court’s ruling in Bommai
effectively turned away from its earlier decision in State of Rajasthan v. Union of
India (upholding the Janata party central government’s dismissal of several state
governments following the 1977 elections) in which the Court had held that a
variant of the political question doctrine should apply to cases involving
challenges to presidential proclamations under Article 356 given that presidential
proclamations were beyond the scope of judicially discoverable and manageable
standards. Id. (citations omitted).
480
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decisions relating to state elections and politics.182 According to S.P.
Sathe, Bommai was “the most important and politically significant
decision of the Court since Kesavananda Bharati” because the Court
extended the doctrine of review under the basic structure doctrine to
“the exercise of power by the President under Article 356 of the
Constitution.”183
The Court also further defined the contours of the basic
structure doctrine in M. Nagaraj v. Union of India, which involved a
challenge to the constitutionality of amendments that overturned
earlier Supreme Court decisions challenging and invalidating
affirmative action laws. Commenting on the basic structure doctrine,
the Court in Nagaraj noted that “it is only by linking provisions to
such overarching principles that one would be able to distinguish
essential from less essential features of the Constitution. The point
which is important to be noted is that principles of federalism,
secularism, reasonableness and socialism etc. are beyond the words of
a particular provision. They are systematic and structural principles
underlying and connecting various provisions of the Constitution.”184
The broader test articulated in decisions like Bommai and Nagaraj
examined whether there are overarching principles that permeate
multiple provisions of the Constitution. As the Court in Nagaraj
observed:
It is important to note that the recognition of a basic
structure in the context of amendment provides an
insight that there are, beyond the words of particular
provisions, systematic principles underlying and
connecting the provisions of the Constitution. These
principles give coherence to the Constitution and
make it an organic whole. An instance is the principle
of reasonableness which connects Articles 14, 19 and
21. Some of these principles may be so important and
fundamental, as to qualify as ‘essential features’ or
part of the ‘basic structure’ of the Constitution, that is
182.
Id. at 152. The Court in Bommai examined the manifesto and political
ideology of the BJP party in determining that the BJP governments would not act
in accordance with “the principle of secularism.” Id. at 176; S.R. Bommai, (1994) 3
S.C.C. at 137–138, 147, 151–153, 172–175, 290–293. But see Justice Verma’s
opinion in S.R. Bommai, (1994) 3 S.C.C. at 85–87 (asserting that there are no
“judicially manageable standards” for scrutinizing Presidential actions under
Article 356, and that such controversies “cannot be justiciable”).
183.
See Sathe, supra note 28, at 152.
184.
M. Nagaraj v. Union of India, (2006) A.I.R. 2007 S.C. 71 (India).
2014]
State Constitutions and the Basic Structure Doctrine
481
to say, they are not open to amendment. However, it
is only by linking provisions to such overarching
principles that one would be able to distinguish
essential from less essential features of the
Constitution.
According to the Court in Nagaraj, Part III of the
Constitution—the Fundamental Rights provisions—contained three
sets of “codes”—the equality code (Article 14, 15, and 16), the freedom
code (Articles 19, 20, 21, and 22), and the right to access the courts
code (Articles 30–32), with each code mapping on to different sets of
rights provisions. Significantly, the Court in Nagaraj also suggested
the need to analyze prior doctrine to identify basic features:
For a constitutional principle to qualify as an
essential feature, it must be established that the said
principle is a part of the constitutional law binding on
the legislature. Only thereafter, the second step is to
be taken, namely, whether the principle is so
fundamental as to bind even the amending power of
the Parliament, i.e. to form a part of the basic
structure. The basic structure concept accordingly
limits the amending power of the Parliament. ...This
is the standard of judicial review of constitutional
amendments in the context of the doctrine of basic
structure.185
More recently, a nine-judge bench of the Court in I.R. Coelho
v. State of Tamil Nadu (2007) reaffirmed the basic structure doctrine
and the Court’s earlier decisions in Minerva Mills (1980) and Waman
Rao (1981). In 1999, an earlier five judge bench in Coelho dealt with a
challenge to the validity of two state laws—the Tamil Nadu Janmam
Act of 1969, and the West Bengal Land Holding Revenue Act of
1979—that had been added to the Ninth Schedule after they had been
invalidated in courts.186 These laws had been added to the Schedule
by the 34th and 66th Amendments. In order to decide the issue, the
185.
Nagaraj, (2006) A.I.R. 2007 S.C. at 102.
186.
In 1972, the Supreme Court invalidated the State of Tamil Nadu’s
Janmam Act, “insofar as it vested forest lands in the Janmam estates in the State
of Tamil Nadu,” on the grounds that it “was not found to be a measure of agrarian
reform protected by Article 31-A of the Constitution.” I.R. Coelho v. State of T.N.
(1999) 7 S.C.C. 580, 581 (India) (citing Balmadies Plantations Ltd. v. State of T.N.
(1972) 2 S.C.C. 133 (India)) . And in 1979, Section 2(c) of the West Bengal Land
Holding Revenue Act, 1979 was struck down by the Calcutta High Court as being
arbitrary and, therefore, unconstitutional. Id.
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[45.2:362
five-judge bench held that the Court’s earlier judgment in Waman
Rao needed to be reconsidered in order to determine whether a law
invalidated by the Courts for infringing the fundamental rights could
subsequently be included in the Ninth Schedule.187 In Waman Rao,
the Supreme Court had held that any laws added to the Ninth
Schedule after April 24, 1973 could be challenged in Court.188 (The
Court had set this cutoff date on the grounds that most laws added to
the Ninth Schedule before this date dealt with agrarian reforms.) In
order to decide the issue in the case, the five-judge bench referred to a
larger bench the question of whether laws declared invalid by courts
could subsequently be added to the Ninth Schedule.
In Coelho (2007), the larger nine-judge bench held that any
law (including laws added to the Ninth Schedule after April 4, 1973)
infringing upon the fundamental rights that was found to have
violated the basic structure doctrine, must be invalidated by the
Court. 189 The majority also expressed concern about what they
perceived was abuse of the Ninth Schedule to protect a wide array of
laws unrelated to agrarian reform.190 Finally, the decision reaffirmed
the Court’s earlier holding in Minerva Mills that the “golden triangle”
of Articles 14, 19 and 21 was part of the “touchstone” of the basic
structure of the Constitution.191 Although the Court’s decision was an
activist one, the bench did not actually strike any laws down. Rather,
the decision prospectively asserted the power of the Court to
invalidate laws added to the Ninth Schedule that infringed upon the
fundamental rights and the basic structure of the Constitution.
B. Unpacking the Basic Structure Doctrine
The Court in Kesavananda asserted the basic structure
doctrine for the first time in holding that there were implied
limitations on the amending power grounded in Article 368 of the
Constitution. 192 In Kesavananda, the Court inferred an implied
limitation on the amending power based on textual and structural
readings of the Constitution, including Article 368, the preamble, and
187.
I.R. Coelho, (1999) 7 S.C.C. at 581–583.
188.
Waman Rao v. Union of India, (1981) 2 S.C.C. 362 (India).
189.
I.R. Coelho, (1999) 7 S.C.C. 580.
190.
Id.
191.
Id.
192.
See Ramachandran supra note 28; Kesavananda Bharati v. State of
Kerala, (1973) 4 S.C.C. 225 (India).
2014]
State Constitutions and the Basic Structure Doctrine
483
based on original intent arguments from the Constituent Assembly
debates.193 However, the majority did not reach a consensus on which
features were part of the basic structure doctrine. 194 Much of the
Court’s jurisprudence, beginning in the Election Case, focused on
articulating an approach for discerning what features constitute
“basic features” that should be entrenched. In the Election Case, the
Court articulated a clear approach for determining whether a
particular feature of the Constitution is a part of the basic
structure.195 The Court held that it must analyze in each case:
the place of the particular feature in the scheme of
our Constitution;
its object and purpose, and;
the consequences of its denial on the integrity of the
Constitution as a fundamental instrument of the
country’s governance.196
The Court in the Election Case thus outlined a structural and
original/historical intent approach for ascertaining what provisions
constitute basic features. Specifically, the first part of the Election
Case framework suggests a structural-textual method of
interpretation, while the second part envisions an original intent
analysis (for determining the object and purpose of a feature) for
situating particular features within the broader constitutional
framework.197 Finally, the third part of the test suggests a concern
with the identity of the Indian Constitution that may require both
structural as well as doctrinal approaches to ascertain the relative
importance of constitutional principles and provisions.198
Based on his analysis of the doctrine, Sudhir Krishnaswamy
posits that the “correct” application of this doctrine requires the
identification of “basic features” as distinguished from core or integral
provisions of the Constitution. 199 Krishaswamy suggests that the
193.
See Kesavananda Bharati, (1973) 4 S.C.C. at 316–27 (India).
194 .
Krishnaswamy, supra note 28, at 27 (citing Rajeev Dhavan,
Parliamentary Sovereignty and the Supreme Court 141 (1978)); see
Ramachandran, supra note 28.
195.
Gandhi v. Narain (1976) 2 S.C.R. 347, 658 (1975).
196.
Id. (emphasis added).
197.
Id.
198.
Id.
199.
Krishnaswamy, supra note 28, at 132. Krishnaswamy critiques Justice
Chandrachud’s opinion in the Election Case as flawed because it identified key
articles—including Article 14 (equality)—as basic features, while suggesting that
Justice Mathew’s structural approach in the same case was superior, in that it
484
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doctrine seeks to identify overarching principles or rules that pervade
the entire Constitution, as opposed to identifying the hierarchy of
importance of particular provisions in the text of the Constitution
itself.200 The doctrine thus seeks to identify basic features that are
“general constitutional rules . . . foundational to the identity and
character of the Indian Constitution and include principles of
institutional design as well as substantive values which together
frame decision-making under it.” 201 Furthermore, Krishnaswamy
acknowledges that the basic structure doctrine must proceed through
a case-by-case approach to identifying the basic features of the Indian
Constitution.202
Krishnaswamy argues that the Court’s basic structure
approach following the Election Case has been flawed in two respects.
First, he argues that the Court in subsequent cases failed to adhere to
the Election Case basic feature framework and appeared to go far
beyond the limited textual-structural approach in that case. 203
Second, Krishnaswamy argues that the Court has erroneously
conflated “ordinary” Article 13 judicial review––which applies to
ordinary legislation––with basic structure review of constitutional
amendments. 204 Thus, Krishnaswamy suggests that the Court’s
decisions— recognizing that key articles/provisions and not just
broader principles are part of the basic structure—are inherently
flawed. He argues that only broader structural principles, not
particular constitutional provisions, should be basic features.
Significantly, Krishnaswamy endorses Justice Pandian’s
approach in R. Ganpatrao v. Union of India to identifying basic
features as “those political, moral, and legal principles, which are
reflected in several articles in the Constitution, which together make
the core normative identity of the Constitution.”205 In advancing this
critique, Krishnaswamy argues that excessive reliance and focus on
constitutional history in identifying basic features is problematic, and
that the Court should focus on interpreting the constitutional text
focused on features that encompass, or can be gleaned from, a reading of multiple
provisions of the Constitution at a broader level.
200.
Id.
201.
Id.
202.
Id.
203.
Id. at 150–54.
204.
Id. at 76–80.
205.
Id. at 146 (citing R. Ganpatrao v. Union of India, A.I.R. 1993 S.C. 1267
(India)).
2014]
State Constitutions and the Basic Structure Doctrine
485
itself in order to ascertain those principles that are part of the
“normative core of the constitution.”206
Krishnaswamy suggests that Justice Chandrachud’s
historical approach to identifying basic features in the Minerva Mills
case is problematic in that it was overly reliant upon historical texts,
including Granville Austin’s The Indian Constitution, in concluding
that the harmony between the directive principles in Part IV of the
Constitution, and the fundamental rights in Part III was a basic
feature of the Constitution. 207 Instead Krishnaswamy endorses
Justice Bhagwati’s approach in Minerva Mills, which identified
judicial review and a limited amending power as basic features based
on a textual analysis of the Constitution, as a superior approach to
identifying basic features, and one that is similar to Justice Mathew’s
approach in the Election Case.208
I suggest a more nuanced approach toward analyzing the
Indian Court’s competing frameworks for identifying basic features.
While Chandrachud’s opinion may have relied excessively on
Granville Austin’s characterization of the status of the directive
principles and fundamental rights in the Constitution,
Krishnaswamy’s critique of Chandrachud’s opinion in Minerva Mills
is also problematic. First, it does not recognize that the Minerva Mills
majority did correctly apply the basic features framework as set forth
in the Election Case. Second, it fails to fully weigh the Minerva Mills
decision’s consideration of a series of activist decisions in the late
1970s by the Indian Court that had significantly expanded the scope
of fundamental rights contained in Articles 14, 19 and 21.
Chandrachud’s approach to identifying basic features, as set
forth in Minerva Mills, is consistent with the three-part framework
set forth in the Election Case. Part II of the Election Case framework
suggests that the Court will have to rely on and analyze evidence of
original and historical intent to identify the object and purpose of
particular provisions. In Minerva Mills, Justice Chandrachud’s
majority opinion relied on historical and original intent analysis for
ascertaining the basic features of the Indian Constitution.209 Part III
of the framework requires that a Court must engage in both
structural and doctrinal modes of analysis to determine whether the
206.
207.
208.
209.
Id. at 157.
See Granville Austin, The Indian Constitution (1966).
Krishnaswamy, supra note 28, at 152, 156.
Id. at 154–156.
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denial of a particular feature would fundamentally affect the
integrity or identity of the constitution. Krishnaswamy’s suggested
approach thus appears to fail to allow for consideration of significant
doctrinal changes in the Court’s jurisprudence, including decisions
interpreting the fundamental rights provisions of the Constitution, in
identifying basic features of the Constitution.
I suggest that Justice Chandrachud’s analysis in Minerva
Mills of the Court’s earlier jurisprudence regarding the importance of
key provisions such as the fundamental rights and directive
principles is consistent with a case-by-case approach that accounts for
dynamic changes in India’s constitutional framework and
transformational “constitutional moments.” 210 Significantly, Justice
Chandrachud’s decision in Minerva Mills also recognized a shift in
the Court’s fundamental rights jurisprudence in the post-Emergency
period, and in so doing, also recognized the historic importance of the
Janata government’s victory in the 1977 elections. In a series of
landmark decisions in the late 1970s, the Court expanded the scope of
the rights contained in Articles 14, 19, and 21, and also began to
develop a new jurisprudence of public interest litigation based on
expanding standing doctrine for public interest litigation. Minerva
Mills thus codified a new conception of judicial supremacy that built
on the Court’s earlier decisions in the Election Case (Article 14
equality) and in Maneka Gandhi (Article 14, 19, and 21), which
greatly enlarged the scope of these rights as limits on the exercise of
arbitrary power.
Chandrachud’s opinion thus took stock of a series of activist
decisions responding to the excesses of Indira Gandhi’s emergency
rule regime, and in reasserting the basic structure doctrine helped to
restore constitutionalism, limited government, and the rule of law.
Additionally, the Court in Minerva Mills solidified the basic structure
doctrine by identifying a core set of rights—Articles 14, 19, and 21—
as forming a “golden triangle” that was foundational to the Indian
Constitution. 211 Chandrachud’s approach thus recognized that
210.
See 1 Bruce Ackerman, We the People: Foundations (1993); 2 Bruce
Ackerman, We the People: Transformations (2000) (“constitutional moments”
occur when a major shift in constitutional structure is brought about by a
coalition who take above-average interest to some important constitutional
question at issue in an election).
211.
Minerva Mills, 1981 S.C.R. (1) at 263–64 (India); India Const. art. 14
(equality); India Const. art. 19 (seven freedoms); India Const. art. 21 (life and
personal liberty; procedural due process). In Maneka Gandhi v. Union of India,
2014]
State Constitutions and the Basic Structure Doctrine
487
broader structural principles and particular provisions of the
Constitution—including
fundamental
rights
provisions—can
constitute basic features of the constitution.
In doing so, the Minerva Mills majority effectively built on
and consolidated earlier decisions that had expanded the scope of
each of the rights in these Articles. The Court’s subsequent decisions
have confirmed that the Court must also look at the Court’s own prior
constitutional doctrine in ascertaining which principles or
constitutional provisions are basic features.212 Thus, in Nagaraj, the
Court recognized that the basic features inquiry is a two-part test
requiring the Court to discern whether a particular principle has
been recognized in the Court’s prior jurisprudence before determining
whether it is a basic feature. 213 While Krishnaswamy argues that
there needs to be textual/structural limits on identifying what
features are part of the basic structure doctrine in line with Mathew’s
and Bhagwati’s arguments in the Election and Minerva Mills cases, I
suggest that original and historical intent, and doctrinal approaches,
while more dynamic, still place limits on the Court’s identification of
basic features.
In addition, Chandrachud’s lead opinion in Minerva Mills
recognized the importance of the judicial role in articulating,
reinterpreting, and redefining the scope and importance of key
provisions of the Constitution. Thus, a Court can, through its
jurisprudence, dramatically re-alter the scope of particular principles
and rights provisions and effectively “re-weigh” the importance of
certain features. Thus, following the Election Case and Maneka
Gandhi cases, the Court effectively reinterpreted the rights contained
in Articles 14, 19, and 21 as conferring much broader rights and
much more robust and extensive limitations on the scope of
(1978) 2 S.C.C. 621, 629 (India), the Court expansively interpreted the right to life
and personal liberty in Article 21, creating a new standard of “non-arbitrariness”
review, and effectively creating a doctrine of substantive due process. See Manoj
Mate, The Origins of Due Process in India: The Role of Borrowing in Personal
Liberty and Preventive Detention Cases, 28 Berkeley J. Int’l L. 216, 218 (2010)
(arguing that the move toward substantive due process was a gradual one that
developed over multiple cases and culminated in Maneka Gandhi).
212.
Krishnaswamy, supra note 28, at 76–80.
213.
M. Nagaraj v. Union of India, (2006) 8 S.C.C. 212, 268 (India).
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government power.214The Court’s reinterpretation and expansion of
the scope of these rights can provide guidance to subsequent judges in
evaluating the “object and purpose” of particular features in the
Constitution.215
What is interesting about the articulation of the basic
structure doctrine in Nagaraj is that it seemingly allows the Court to
rely on and build on earlier jurisprudence that “establishes” key
constitutional principles, and then to “elevate” those principles to the
status of a basic feature of the Constitution. This suggests that U.S.
state courts may have to develop their own corpora of constitutional
law to reference in determining whether certain key principles are
recognized as “established” principles of law that bind the
Government or Legislature, and then ascertain whether those
principles are indeed part of the basic structure doctrine.
V. APPLYING THE BASIC STRUCTURE DOCTRINE TO STRAUSS AND
PROPOSITION 8
The majority in Strauss interpreted the Court’s earlier
decisions, including Raven, as standing for the proposition that “in
deciding whether or not a constitutional change constitutes a
qualitative revision, a court must determine whether the change
effects a substantial change in the governmental plan or structure
established by the Constitution.”216 In this section, I argue that the
Strauss majority’s application of the Raven revision-amendment
standard was inherently problematic in that it failed to provide a
clear and coherent approach to identifying what are the basic
features of the California Constitution. In Raven, the Court
invalidated Proposition 115, ruling that it constituted a revision, not
an amendment, on the grounds that it would have subordinated the
214.
See Mate, supra note 205 (arguing that the move toward substantive
due process was a gradual one that developed over multiple cases and culminated
in Maneka Gandhi).
215 .
As suggested in Justice Chandrachud’s decision in Minerva Mills,
courts can play a significant role in redefining the scope and weight of key
constitutional provisions through a process of judicial entrenchment. In the
post-Emergency period, the Court redefined the scope of the fundamental rights
provisions in a series of activist decisions. Through its basic structure decisions,
the Court built on these earlier decisions in asserting its role as a guardian of the
constitution in entrenching fundamental rights and principles of limited
government and constitutionalism (including a limited amending power).
216.
Strauss v. Horton, 207 P.3d at 85, 88 (Cal. 2009).
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State Constitutions and the Basic Structure Doctrine
489
role of the California judiciary to the federal courts, in requiring
California courts to interpret state provisions governing criminal
procedure in line with federal courts’ interpretations of parallel
provisions in the federal constitution.217
As Cain and Noll argue, the Raven revision-amendment
standard, as applied in Strauss, is problematic because it fails to
provide a workable bright-line test that meaningfully distinguishes
between revisions and amendments that abrogate or infringe
fundamental rights. 218 The Raven Court sought to distinguish two
cases—In re Lance W (1985) and People v. Frierson (1979)—in which
the Court upheld two amendments that sought to restrict
fundamental rights. In In re Lance W, the Court upheld a measure
that sought to limit the exclusionary remedy for search and seizure
violations to the protections of the federal Constitution, while in
Frierson, the Court overturned the Court’s earlier decision holding
the death penalty unconstitutional under the California
Constitution. 219 The Court in Raven sought to distinguish the
relatively limited scope of the changes effected by the initiatives in
these earlier cases in holding that the provisions in Raven involved a
“broad attack on state court authority to exercise independent
judgment in construing a wide spectrum of important rights under
the state Constitution.”220 As Grodin notes, the challengers in Strauss
argued that Proposition 8 could be distinguished from In re Lance W
and Frierson on the ground that Proposition 8 abrogated the rights of
a suspect class.221 The Court in Raven held that only measures that
abrogate the Court’s authority to exercise independent judgment in
constructing a wide spectrum of rights under the state constitution
would constitute a revision. The Raven court thus invalidated
Proposition 115 because it
would substantially alter the substance and integrity
of the state Constitution as a document of independent
force and effect. . . . Thus, Proposition 115 not only
unduly restricts judicial power, but it does so in a way
which severely limits the independent force and effect
of the California Constitution. . . . Proposition
217.
Raven v. Deukmeijian, 801 P.2d 1077, 1088–90 (Cal. 1990).
218.
Cain & Noll, supra note 17, at 1518–22, 1530–32.
219.
Joseph R. Grodin, On Amending and Revising the Constitution: The
Issues behind the Challenge to Proposition 8, 1 Cal. J. Pol. & Pol’y 1 (2009).
220.
Id. at 47 (citing Raven, 801 P.2d at 1089).
221.
Id.
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115 . . . substantially alters the preexisting
constitutional scheme or framework heretofore
extensively and repeatedly used by courts in
interpreting and enforcing state constitutional
protections. It directly contradicts the wellestablished judicial principle that, “The judiciary,
from the very nature of its powers and means given it
by the Constitution, must possess the right to
construe the Constitution in the last resort . . . .”222
Thus, the Raven standard directly entrenches a conception of
judicial federalism and suggests that measures that “substantially
alter the substance and integrity of the state constitution as a
document of independent force and effect,” and affect the Court’s
ability to interpret the state constitution independently of the federal
constitution, constitute revisions to the constitution. 223 Although
Raven explicitly acknowledged that principles of judicial federalism
may be sacrosanct, the Court in Strauss ultimately held that the
scope of Proposition 8 did not rise to the level of a revision in terms of
Proposition 8’s impact on the scope and breadth of rights in the state
constitution.224 But the Strauss majority’s application of Raven was
flawed in at least three ways.
First, the Court’s efforts to try to distinguish the In re Lance
W and Frierson cases from Raven have resulted in an ambiguous and
incoherent framework for determining whether particular measures
that abrogate fundamental rights rise to the level of a revision under
constitutional law.225 Second, the Strauss Court failed to fully address
the broader impact of Proposition 8 on the California Supreme
Court’s role in interpreting the California constitution as a document
of independent force and effect, and in doing so, greatly
underestimated the impact of the measure on judicial federalism in
California.
Third, the Strauss majority acknowledged its own failure to
articulate an approach or method for ascertaining whether particular
principles or rights are “basic features”:
Nonetheless, in each case this court did not undertake
an evaluation of the relative importance of the
222.
Strauss v. Horton, 207 P.3d 48, 95–96 (Cal. 2009) (citing Raven, 801
P.2d at 1087–88) (emphasis added).
223.
Raven, 801 P.2d at 1087–88.
224.
Strauss, 207 P.3d at 98–101, 103–110.
225.
See Cain & Noll, supra note 17.
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State Constitutions and the Basic Structure Doctrine
491
constitutional right at issue or the degree to which the
protection of that right had been diminished, but
instead held that the measure did not amount to a
qualitative revision because it did not make a
fundamental change in the nature of the
governmental plan or framework established by the
Constitution.226
India’s basic structure doctrine addresses each of these
problems and provides a superior framework for identifying the basic
features of a constitution. At the same time the Indian approach
anticipates the concerns of scholars concerned about unconstrained
judicial subjectivity, 227 and also provides for constraints on the
potential problem of judicial subjectivity or judges’ injecting their own
policy values into determinations of what are basic features. Thus, as
Krishnaswamy observes, various justices on the Supreme Court of
India have advanced different approaches that emphasize the use of
constitutional text, structure and history in order to ascertain the
normative core of the Constitution. Finally, the basic structure
doctrine provides a neutral framework or methodology for how the
California Supreme Court may identify which principles or rights
should be deemed to be basic features.
Proposition 8 abrogated several potential “basic features” of
the California Constitution, including equality and the equal
protection clause, and the California judiciary’s role in interpreting
the California Constitution independently of the federal constitution
and courts. In Raven, the Court arguably recognized that the scope
and nature of judicial power was a basic feature as it was part of the
structure or governmental plan. 228 In addition, applying the basic
structure doctrine to California, one could argue that the California
Court’s power to interpret the California Constitution independently
from the federal constitution is a basic feature of the California
Constitution, as well as a core feature of federalism (which is
arguably a basic feature of the federal constitution).229
226.
Strauss, 207 P.3d at 100.
227.
See Gary Jacobsohn, The Permeability of Constitutional Borders, 82
Tex. L. Rev. 1763 (2004) (analyzing various critiques of the use of foreign legal
sources in the U.S.).see Sujit Choudhry, Globalization in Search of a Justification,
74 Ind. L. J. 819 (1999).
228.
Raven, 801 P.2d at 1089.
229.
See Grodin, supra note 213.
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First, Proposition 8, in line with the Court’s earlier decision in
Raven, did fundamentally alter the role of the California Supreme
Court, and the place of the California Constitution in the federal
system as a document of independent force and effect. The California
court’s role in policing amendments and to protect the Constitution’s
“above the floor” protections vis-à-vis federal constitutionalism can
thus be viewed as a basic feature.230 Additionally, Article I, section 24
of the constitution states that “rights guaranteed by this Constitution
are not dependent on those guaranteed by the United States.”231 And
as Grodin observes, the California Constitution was originally
adopted in an era in the 1840s in which the protections set forth in
the Bill of Rights of the U.S. Constitution were held not to apply to
the states by the U.S. Supreme Court in Barron v. Baltimore. As a
result, the California Constitution was understood as a charter that
would provide for an independent guarantee of and protection for
rights distinct from those set forth in the federal constitution.
Drawing on the Election case’s three-part basic features
framework, the California Supreme Court could have first analyzed
the unique place and role of equal protection within the fundamental
rights section of the California Constitution, by applying principles of
structural analysis, and second, examined the original and historical
intent of the California constitution provisions in order to determine
the object and purpose of the equal protection clause.232 Third, the
Court could have focused on the impact of Proposition 8 on the
“integrity” of the California Constitution, by examining the extent to
which the initiative altered the “identity” of the California
Constitution. One aspect of this unique identity was the state
constitution’s own delineation of fundamental rights as distinct from
the federal constitution. Arguably, the identity of the California
Constitution would be fundamentally altered if it was allowed to be
subordinated as an instrument for protecting rights vis-à-vis the
federal constitution.233
Additionally, the California Supreme Court could go much
further in recognizing that Article I, Section 7’s equal protection
230.
See Cain & Noll, supra note 17, at 1519–22.
231 .
See David B. Cruz, Equality’s Centrality: Proposition 8 and the
California Constitution, 19 S. Cal. Rev. L. & Soc. Just. 45, 60 (2010) (citing Cal.
Const. art. I, § 24).
232.
See Grodin, supra note 213, at 47; Cruz, supra note 213.
233 .
See Strauss v. Horton, 207 P.3d 48, 132 (Cal. 2009) (Moreno, J.,
dissenting); Grodin supra note 213, at 47; Cruz, supra note 213.
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State Constitutions and the Basic Structure Doctrine
493
clause is now a basic feature, given the California Court’s robust
interpretation of the right to equality in the Serrano v. Priest234 cases
and subsequent decisions. 235 Professor David Cruz, in his article
Equality’s Centrality, examines how equality was a central part of the
California Constitution, and how through subsequent jurisprudence
of the California Supreme Court, has become established as a key
principle in constitutional law (through equal protection
jurisprudence).236 Justice Moreno’s opinion also articulated the object
and purpose of the equality provisions—identifying how equality and
equal protection was well-developed as a doctrine in California law,
and how the principle was foundational to the counter-majoritarian
function of courts. The consequence of denial is clear—the Court can
no longer interpret the California Constitution as a document of
independent force and effect, thus undermining rights of federalism.
Critics of the use of foreign legal sources in U.S. domestic law
may argue that state supreme court reliance on the basic structure
doctrine may be problematic.237 However, I suggest that the Indian
basic structure doctrine provides a “neutral” framework or test for
identifying basic features in any constitution 238 and thus avoids
potential subjectivity that might result from a more open-ended
approach to identifying basic features that is suggested in Moreno’s
dissent, as well as the legitimacy concerns raised by Werdegar’s
approach. In this way, the use of the Indian framework would be
consistent with a dialogical or contextual approach to judicial
borrowing.239
234 .
See Cruz, supra note 222, at 59–60 (identifying differences in
California and federal standards regarding equality in the area of school financing
(citing Serrano v. Priest (Serrano II), 557 P.2d 929, 951–52 (Cal. 1976))).
235.
Cruz, supra note 213, at 59–61 (arguing that equality has long been a
central feature of California’s jurisprudence and that the Serrano I and II
decisions illustrate how the Court has interpreted California’s equal protection
clause independently of the federal constitution, interpreting the provision to
have greater strength than its federal counterpart).
236.
Id.
237 .
See generally Gary Jacobsohn, The Permeability of Constitutional
Borders, 82 Tex. L. Rev. 1763 (2004) (analyzing various critiques of the use of
foreign legal sources in the U.S.).
238.
See Herbert Wechsler, Toward Neutral Principles of Constitutional
Law, 73 Harv. L. Rev. 1, 15 (1959); David Law, Generic Constitutional Law, 89
Minn. L. Rev. 652 (2005) (exploring convergence in constitutional principles and
frameworks globally).
239.
See Mate, supra note 205, at 229–30 (reviewing various approaches to
judicial borrowing); Sujit Choudhry, Globalization in Search of a Justification, 74
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Thus, instead of importing the “laundry list” of basic features
that has been developed over time in various basic structure decisions
in India, California courts could instead apply a methodology for
identifying such features in its own constitution. The California
judiciary could thus develop its own framework for identifying basic
features that could only be changed via revision by relying on and
importing “best practices” from another country’s jurisprudence,
without necessarily redefining the substantive content and framework
of California’s constitution. Additionally, California courts could look
to California’s own constitutional text, structure, history, and the
development of California’s own constitutional jurisprudence in
identifying what features were so basic as to require resort to the
revision process for altering those features.
VI. CONCLUSION
As this Article illustrates, judicial entrenchment can actively
serve to bolster the original normative goals of the U.S. Constitution.
In California, application of the Indian basic structure doctrine could
help bolster principles of federalism by enhancing the power of state
courts to interpret state constitutions as documents of “independent
force and effect.”240 Application of the basic structure doctrine could
also advance the goals of rights federalism by enabling state
judiciaries to build on the federal “floor” of rights and provide their
citizens with greater rights protections than the federal
constitution. 241 As the number of amendments that impinge upon
fundamental rights increase, the exercise of popular sovereignty,
without checks, threatens to undermine rights federalism, by
allowing popular majorities to gradually erode the original
commitments and foundations of state constitutions.
Defenders of the narrow definition of a revision applied in
Strauss may argue that the “federal backstop” of the federal
Ind. L. J. 819, 835–36 (1999) (discussing “dialogical” approaches as a middlerange alternative to universalist and particularist approaches); Jacobsohn, supra
note 138, at 1767. As Jacobsohn, Choudhry, Jackson, and other scholars have
suggested, looking to foreign legal sources for insights on a country’s (or state’s)
own unique domestic constitutional structure can illuminate constitutional
problems in a novel light.
240.
241.
See Raven v. Deukmejian, 801 P.2d 1077 (Cal. 1990).
Cain & Noll, supra note 17, at 1520–22.
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State Constitutions and the Basic Structure Doctrine
495
constitution serves as a secondary check on the ability of political
majorities at the state level to abrogate minority rights. 242 These
scholars or advocates might point to the Ninth Circuit’s decision
invalidating Perry v. Schwarzenegger in which the opponents of
Proposition 8 were vindicated, as evidence that federal courts can
provide the needed safeguard that helps guard against violation of
fundamental rights by majorities of a state’s electorate, obviating the
need for a basic structure doctrine or entrenched rights doctrine at
the state level. 243 Although the federal courts have in some cases
invalidated state constitutional amendments like Proposition 8, in
other cases, federal courts have upheld bans on same-sex marriage in
Nevada and Hawaii.244
In Windsor, the U.S. Supreme Court invalidated DOMA
based on equal protection and federalism grounds without
recognizing a fundamental right to same-sex marriage. 245 And the
Court refused to rule on the underlying substantive constitutional
issues in Hollingsworth v. Perry, finding that petitioners lacked
standing to defend Proposition 8 on appeal. While the California
district court in Perry v. Schwarzenegger issued a favorable decision
recognizing same-sex marriage rights, other federal district courts
have not followed suit. Thus, there are no guarantees that federal
242.
Id. at 1521–22.
243.
The Court in Perry applied the Court’s earlier decision in Romer and
held that once California granted the right of marriage to all Californians in the
In re Marriage Cases, it could not arbitrarily take away that right from a suspect
class of individuals without at least offering a rational basis for doing so. This
concept of the “one way ratchet” has been explored in the literature by several
scholars. See Akhil Reed Amar, Attainder and Amendment 2: Romer’s Rightness,
95 Mich. L. Rev. 203, 206 (1996); John Eastman, Stare Decisis: Conservatism’s
One-Way Ratchet Problem, in The Court and the Culture Wars 127, 130 (Bradley
Watson ed., 2002); Steven Vladeck, The Riddle of the One-Way Ratchet: Habeas
Corpus and the District of Columbia, 12 Green Bag 71, 74 (2008). Interestingly,
the basic structure doctrine may also serve as a one-way ratchet in allowing for
rights to be added, but not removed from constitutions, though a full discussion of
this point is beyond the scope of this article.
244.
See Jackson v. Abercrombie, 884 F. Supp. 2d 1065 (D. Haw. 2012)
(upholding Hawaii’s same sex marriage ban); Sevcik v. Sandoval, 911 F. Supp. 2d
996 (D. Nev. 2012) (holding that Nevada’s ban on same sex marriage does not
violate equal protection)
245.
U.S. v. Windsor, 33 S.Ct. 2675, 2684–2690, 2693–2695 (2013); see
Neomi Rao, supra note 13(arguing that Windsor recognized the dignity of
same-sex marriage, not the right to same-sex marriage, in holding that the federal
government must recognize existing same-sex marriages at the state level).
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courts can serve as an effective federal “backstop” to vindicate
individual rights at the state level in all contexts. This alternative
“substantive model” of federal review provides incomplete protection
for fundamental rights. Even under the federal constitutional
standard for equal protection articulated in Romer, a state can
infringe upon the fundamental rights of a suspect class provided that
the state has a rational basis for doing so. 246 In light of these
weaknesses, this article argues for a stronger, more robust form of
substantive review of constitutional amendments based on
independent state grounds.247
At least in the context of California and other states that
allow for initiative constitutional amendments, federalism poses
challenges for the popular constitutionalism model. Because Article
IV, Section 4 of the U.S. Constitution guarantees a republican form of
government to state constitutions, the initiative process in states
presents serious difficulties to preserving and protecting federalism
in at least partly subordinating representative government to popular
democracy. The advent of the initiative process effectively brought
popular federalism and rights federalism into direct conflict. Because
federalism was incorporated into the U.S. Constitution as a
mechanism for protecting individual rights and liberties against
usurpation and tyranny and the excesses of majoritarian rule, it can
be argued that state courts must assert a more robust role in
protecting republicanism at the state level through more robust
review of initiative constitutional amendments, that in the end helps
advance the broader goals of federalism.
And because the U.S. Supreme Court and federal courts
effectively shut off potential challenges to the form of state
governments on the basis of the guarantee clause in Coleman v.
Miller and Luther v. Borden 248 based on the political question
doctrine, the only mechanism currently available for protecting the
246.
Romer v Evans, 517 U.S. 620 (1996) (applying rational basis review to
Colorado’s Amendment 2, which barred state and local government officials from
taking any legislative, executive, or judicial action to recognize gay and lesbian
individuals as a protected class).
247.
See id.
248.
See Gary Jacobsohn, An Unconstitutional Constitution?: A Comparative
Perspective, 4 Int’l J. Const. L. 460, 479 n. 67–68 (2006) (citing Coleman v. Miller,
307 U.S. 433, 459 (1939); Luther v. Borden, 48 U.S. 1 (1849)).
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State Constitutions and the Basic Structure Doctrine
497
identity of state constitutions is through state constitutional law.249
Thus, while federal courts can play a role in invalidating state
constitutional amendments that violate the federal constitution,
states should have the final say as arbiters of state constitutional
law; federal courts cannot necessarily be relied upon to play a role in
policing and protecting the identity of state constitutions. As a result,
then, the constitutional blind spot of American federalism suggests
the need for the adoption of basic structure doctrine frameworks in
states that have the initiative process.
In allowing for a great degree of flexibility in the
establishment of state constitutions, the unique structure of
American federalism actually ended up creating new opportunities
for political majorities to restrict minority rights, particularly in
states that created mechanisms for constitutional amendment and
lawmaking through the initiative process. This in part can be traced
to a fundamental duality within the American constitutional
system—while the U.S. Constitution is difficult to amend, state
constitutions are more malleable and can be amended through the
initiative process. 250 The innovation of direct democracy in many
states has arguably created a federalism “blind spot,” allowing state
majorities to abrogate fundamental rights through popular
initiatives.
The California Supreme Court, and other state supreme
courts, should consider and apply insights from the Indian basic
structure doctrine in the review of constitutional amendments. More
broadly, state Supreme Courts should protect the identity and
uniqueness of state constitutions vis-à-vis the federal constitution to
preserve a republican system of government and protect against the
tyranny of the majority at the state level. As the final arbiters and
249.
The U.S. Supreme Court has not recognized the power to invalidate
federal constitutional amendments and has not asserted the basic structure
doctrine. Although beyond the scope of this article, one might note that the U.S.
Supreme Court has effectively weakened or undermined earlier amendments
through constitutional interpretation. For example, the Court significantly
narrowed and weakened the scope of the privileges and immunities clause of the
Fourteenth Amendment in The Slaughterhouse Cases, and weakened and
narrowed the equal protection clause of the Fourteenth Amendment in the Civil
Rights Cases. See Slaughter-House Cases, 83 U.S. 36, 78 (1872); see Kermit
Roosevelt, Forget the Fundamentals, Fixing Substantive Due Process, 8. U. Penn.
J. of Constit. L. 983 at 999, n. 63; Manoj Mate, Two Paths to Judicial Power, 12
San Diego Int’l L.J. 175 at 212.
250.
See Cain & Noll, supra note 17, at 1518–1520.
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interpreters of “malleable state constitutions,” 251 I argue in this
Article that state supreme courts must play a key role as institutions
of judicial entrenchment, in determining which provisions and
aspects of state constitutions cannot be altered through the initiative
process.252 In performing this role, state supreme courts in the United
States play a crucial role in defining and preserving the unique
“constitutional identity” of state constitutions. 253 The exercise of
popular sovereignty, without checks, threatens to undermine rights
federalism, by allowing popular majorities to gradually erode the
original commitments and foundations of state constitutions.
Adoption of the basic structure doctrine could thus aid state supreme
courts in protecting the integrity of state constitutions, and bolstering
protections for fundamental rights.
251.
See generally Cain & Noll, supra note 17 (exploring the consequences
of malleable state constitutions on policy outcomes, government efficiency, and
effective protection of individual rights).
252.
In light of the recent history of activism and initiative politics, it is
worth sounding a cautionary note regarding application of the basic structure
doctrine in California. In response to the activism of Chief Justice Rose Bird and
the California Court in the 1980s, the voters of California ultimately voted not to
approve the retention of Bird and two other judges. See Peter Galie, State
Supreme Courts, Judicial Federalism and the Other Constitutions, 71 Judicature
100, 103, 109 (1987). Since that period, this “political backlash” to judicial
activism on the Court has arguably tempered the extent to which the Court is
willing to take on and challenge the constitutionality of laws and initiatives
enacted by the California voters. However, this should not necessarily foreclose
consideration of the basic structure doctrine in California and other courts. The
court could heed the lessons of Marbury v. Madison, 5 U.S. 137 (1803), by
strategically asserting and adopting the doctrine in less controversial and
lower-salience cases.
253.
See Jacobsohn, supra note 48, at 361.