I live in a state in the United States that just had a constitutional amendment that I voted for overturned by a federal judge and am suitably ticked.

How often does this happen to American citizens and what can the average person do to appeal a law that they believe they have a stake in that was overturned by a federal judge? Does a citizen have grounds for appealing a constitutional amendment that was overturned by virtue of the fact that they voted for it?

  • I'm assuming from timing that you're in Wisconsin? It matters because it determines what basis the judge has, although the issue itself is irrelevant.
    – Bobson
    Commented Jun 12, 2014 at 19:31
  • @Bobson I think the judge had a big long-winded opinion. Is that her basis? Commented Jun 12, 2014 at 19:42
  • Generally, you only have grounds to appeal a ruling if you were somehow involved in the original case. Commented Jun 12, 2014 at 20:01
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    @SamIam I'd think that the act of voting for the law that was overturned should make someone involved. Pretty lame if that's not the case. Commented Jun 12, 2014 at 20:14
  • @PeterTurner - Alright, I think I addressed everything in my answer, except for "how often". Let me know if you need more clarification on anything.
    – Bobson
    Commented Jun 12, 2014 at 20:26

2 Answers 2


The main reason I know of for a federal judge to step in when it comes to state laws is when those laws are unconstitutional. For instance, if a state passed a law, or even an amendment to its state constitution which permitted slavery, the federal judge could overturn it as a violation of the 13th amendment.

Federal judges have this power, because of Article VI of the US Consitution wihch reads (in part):

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.

In Article III, it specifies that

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

Taken together, this means that when a state passes an unconstitutional law, it is itself breaking the law (Article VI), and can be taken before a federal court (Article III) to be forced to change its course (you can't exactly arrest a state, after all). And the US Supreme Court (SCOTUS) determines what is unconstitutional.

So much for the general case. In this example, which I am assuming is related to Wisconsin's gay marriage ban being overturned, SCOTUS has found that laws restricting gay marriage are a violation of the Fifth Amendment's "Due Process" clause, which says (in part):

nor shall any person ... be deprived of life, liberty, or property, without due process of law

In Windsor v. United States they held that laws defining marriage as between one man and one woman violate a homosexual's rights to equal liberty (specifically, to marry who they choose). Since these laws are now unconstitutional, and the US Constitution is the supreme law of the land, all state-level laws (and constitutional amendments) are now illegal, and thus they legally must be overturned.

As for addressing it, in Hollingsworth v. Perry SCOTUS decided that you don't have standing to sue the government for its decisions simply because you voted for or championed a given cause. The details are on that wikipedia page, but it boils down to this (my interpretation): "If you can't show how you, personally, were or will be harmed by the law, you can't sue to stop it.

Basically, unless the ability of other people to marry has some detrimental affect on your legal rights, you have no standing to sue.

However, as @cpast pointed out in the comments, the state itself does have standing to appeal (assuming it wants to, which California didn't in Hollingsworth v. Perry), because it is directly affected by this ruling, so you can encourage your governor to pursue it on your (and the state's) behalf.

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    Note that, even though no individual Wisconsinite has standing to sue or file an appeal, the state government does have standing to appeal. In Perry, the state of California refused to defend the amendment at all; in trial court, a third party could intervene and try to defend the amendment, but when they lost, they didn't have standing to file their own motion appealing the decision, and California certainly wasn't going to appeal for them. In Wisconsin, though, it looks like the state is likely to appeal, so it'll get heard by a higher court anyways.
    – cpast
    Commented Jun 12, 2014 at 23:43
  • @cpast - Very good point. I've added a mention of that in to the answer.
    – Bobson
    Commented Jun 13, 2014 at 13:15
  • This is a great answer but i still want to know if any other constitutional amendments added by referendum have been overturned, if that has never happened in the history of the USA, then this would be a pretty blatant attack on self-governance. Commented Jun 22, 2014 at 4:10
  • @PeterTurner - Here is an example of a approved-by-ballot state constitutional amendment which was overturned by the 10th Circuit Court Of Appeals. Here is an older example of one that got overturned by the state Supreme Court, then had that ruling affirmed by the SCOTUS. So it's happened via both the state court system and the federal court system in the past. I couldn't find the first instance of it, though.
    – Bobson
    Commented Jun 22, 2014 at 18:07
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    @cpast - Actually, state law trumps federal laws unless the latter is in a sphere where the Constitution grants power to Congress or takes it away from the states themselves (See the 10th Amendment). That said, the Commerce Clause has been used to authorize a huge amount of federal legislation, including the creation of the FCC (which then has been granted authority to pass its own rules that carry the force of the laws which created it).
    – Bobson
    Commented Apr 22, 2015 at 21:20

"How often" would be difficult to find a quantitative answer for, but this is not a strange occurrence. The structures of some states allow the collective will of the people to establish the framework of that state more directly than others, yet there is no framework in the United States' structure to support the will of the people if they violate the constitution of the republic.

So it is always perplexing to see people waste their energy on certain things in a political way, but maybe within those areas the concept is not so readily understood or maybe there is a lot of social pressure to support certain political goals.

  • (protip: just because it is downvoted does not mean it is incorrect)
    – CQM
    Commented Jun 13, 2014 at 4:01
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    It doesn't necessarily mean that it's incorrect, but it does mean people think it doesn't answer the question. Personally, I have no idea what you're saying here.
    – Bobson
    Commented Jun 13, 2014 at 13:16
  • I think time is the only barrier to finding out a quantitative answer. It would only take somebody annotating each Supreme Court decision as to whether it overturned a state constitutional amendment, and then reporting that.
    – user3109
    Commented Jun 13, 2014 at 17:20

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