Posted by: Casey Lybrand | August 5, 2010

What is this “Constitution” of which you speak?

Read this in a newspaper article quoted over at the Prop 8 Trial Tracker: [1]

U.S. District Court Judge Vaughn Walker ruled the law violates federal equal protections and due process laws. [2]

No. No, no, no. And also no.

Now, I am not a lawyer, but c’mon. This is pretty basic stuff.

Walker didn’t base his decision on “federal equal protections and due process laws”. He decided based on the Constitution of the United States of America. Specifically, the Equal Protection and Due Process Clauses of the Fourteenth Amendment. The Fourteenth Amendment to the Constitution.

The newspaper article does go on to mention the US Constitution. Eventually. But for an above-the-fold summary of the case, I want to see a Constitutional right called a Constitutional right. It’s not that hard.

There is a difference between the US Constitution and a federal law. As in the one outweighs the other. As in, the Constitution outweighs federal law, and state law as well. Whether a federal law outweighs a state law is a more complex issue, but when it comes to fundamental rights, the US Constitution trumps them both. [3]

I don’t know if it’s a matter of lazy or ignorant or what, but a newspaper reporting on “federal equal protections and due process laws” instead of the Constitutional right to equal protections and due process – that’s just not helping.

Get it right, Fourth Estate. [4] Otherwise, you are part of the problem.


While I was double-checking (you know, fact-checking) before hitting “Publish” on this post, I refreshed the newspaper article and found that it had been updated substantially.

The article now 1) mentions the Fourteenth Amendment (which it didn’t until the update); 2) locates due process and equal protection within the Fourteenth Amendment; and 3) does not contain the quote above, but says this instead:

Sure to be at the center of the debate is whether California’s Proposition 8 violates the 14th Amendment, which guarantees equal protections for all and declares that government won’t take away “life, liberty or property” without due process.

U.S. District Judge Vaughn Walker said on several occasions in his ruling that he believes gay marriage bans clearly deprive people of those rights.

Good! This is good. (If a little more he-said/she-said than the original. But that’s a whole other rant.)

I’m still posting my original rant, now with this addendum. Why? Because this sort of thing happens all the time. Because I expect (for some values of “expect”) journalists reporting on Constitutional issues to be able to get Constitutional issues right the first time. Because the faulty information was up there for hours, and I’m really not pleased about that. The rant is still valid in general, but kudos to the Bee for bringing the Constitutional issues into the article where they belong. Eventually.

Even my footnotes are ranty:

1: The Prop 8 Trial Tracker is awesome, and my rant is a bit off-topic, so I’m blogging here instead of commenting over there. My marriage equality comment would be this: “Woohoo! Go equality!”

The issue in my rant, while a bit sideways to the marriage equality issue, is an important one. The Constitution — what it is, and what it isn’t — is important. Words matter. The Constitution matters.

2: The original article is here. Emphasis added to the quote to highlight the issue I’m addressing.

3: Why is this important? It’s important because the Constitution is not merely a set of laws and regulations. It is the foundational document of our nation. It is our agreement as a society about what rights we the people have and about which powers we grant to the government. It tells the courts which of our laws are okay, and which are not. As in, “Is this law Constitutional? I know… Let’s look at the Constitution!” Novel concept, I know.

4: Hey, news media – a “trivia” question for you: The US Constitution mentions only a few professions; what is first profession mentioned in the Bill of Rights? Bonus points for also having a clue as to why that would be.

Helpful links for anyone who wants to play along:


  1. The most amusing (but kind of sad) part of all of this for me is the people who voted for Prop 8 complaining that it isn’t democracy because the judge overturned something that the majority wanted.

    Which is exactly what the government’s job is — protect the minority from the majority.

    Why it’s even a big deal what two consenting adults do is still baffling to me. Ahh well. It’ll change soon enough. Go equality!

  2. Amusing, sad, and kinda scary. One of my favorite quotes from the Perry decision addresses the democracy vs. rights issue (citing an older case as precedent):

    “That the majority of California voters supported Proposition 8 is irrelevant, as ‘fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections.'”

    But that only makes sense if you get what the Constitution is there for in the first place. Which is why I don’t appreciate it when the news media is so unhelpful.

    We’re getting there. This whole equality thing has always been a work in progress.

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