A Limited (State) Constitution

Apropos my musings here, Ian Ayres provides a far more eloquent and persuasive post arguing that in certain cases, state constitutions are more limited in what they can contain compared to state statutes. An excerpt:

Normally we think of the constitution as superior law. But here is a special situation where a rule of law becomes unconstitutional merely because it is put in the less amendable constitution. After this opinion, the statutory prohibition stands, but the constitutional prohibition falls.

The statute’s weakness is its greatest strength. The fact that the statute is more easily amended means that same-sex couples retain a more vibrant right to petition a deliberative body for redress of their grievances.

The U.S. Supreme Court upheld similar reasoning in 1967 when it struck down an analogous California constitutional amendment. The infamous Proposition 14 prohibited the state’s legislature from considering fair housing measures. The Supreme Court found that the legislature might choose not to adopt such measures but the constitution could not ban them.

You know I don't ask this often, but read the whole thing.