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6 J. Juris 121 (2010)
Names and Designations in Law: Towards a Nominalist Approach to Constitutional Jurisprudence

handle is hein.journals/jnljur6 and id is 15 raw text is: THE JOURNAL JURISPRUDENCE

NAMES AND DESIGNATIONS IN LAW: TOWARDS A NOMINALIST APPROACH
TO CONSTITUTIONAL JURISPRUDENCE'
Thomas Kupka
I.
In a constitutional democracy, the people have the last word - or a
Constitutional Court. And such a Court has to, inter alia, ensure that the people
retain the power to give their word.  Now, the people's vote often is difficult
to predict and, on occasion, even contradictory. A Constitutional Court, in
contrast, has to maintain the continuity of the Constitution, adjust it to the
changing times but also ensure that the political conditions do not compromise
its substance. The well-understood balance between continuity and change,
therefore, belongs to the noblest tasks of constitutional jurisprudence. The
California Supreme Court, however, has shown quite a remarkable turn in this
respect: In May 2009 it confirmed in Strauss v. Horton2, by a majority of 6:1, an
amendment to the California Constitution, which now reads: Only marriage
between a man and a woman is valid or recognized in California'3, whereas it
declared a year before in In re Marriage Cases, a statutory family law provision4
with exactly the same formulation, unconstitutional because retention of the
traditional definition of marriage did not constitute a state interest sufficiently
compelling, under the strict scrutiny equal protection standard, to justify
withholding that status from same-sex couples.'
In both instances the reviewed provisions have come about by direct-
democratic legislative initiatives. The fact that constitutional amendments can
be adopted by initiative is a specialty of California law and is regarded as a
particularly democratic feature of the California Constitution.6 In the current
1 Thanks to Chad Crowe for a help with the language and to Eric Engle for the editorial fine-
tuning.
2 KAREN L. STRAUSS, et al., Petitioners, v. MARK B. HORTON, et al. The decision is of
May         26,        2009        and        is        published        under:
http://www.courtinfo.ca.gov/opinions/documents/S168047.PDF. Page numbers in this
article refer to the pages there.
3 Cal. Const., Art. I, § 7.5.
4 California Family Code, § 308.5.
5 In re Marriage Cases, 43 Cal. 4th 757 (May 2008).
6 Cal. Const., Art. II, § 8, subd. (b); Art. XVIII, §§ 3 and 4. Seventeen more states, though,
permit constitutional amendments to be proposed through the initiative process. These states
are: Arizona (Ariz. Const., art. 4, pt. 1, § 1(2)), Arkansas (Ark. Const., art. 5, § 1), Colorado
(Colo. Const., art. V, § 1(1)), Florida (Fla. Const., art. XI, § 3), Illinois (Ill. Const., art. XIV, §
3), Massachusetts (Mass. Const., amend. art. XLVIII, pt. II, § 2), Michigan (Mich. Const., art.
(2010) J. JuRis 121

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