US Politics 3

[sToNED_CAT]

Like when the courts outlawed segregation. Against the will of the people.

If courts really outlawed segregation what was Civil Rights Act about?

[Spring Bass]

What point are you trying to make here? That humanity took a long time to come around and that the strongest opposition at the end of the day came from the Republican side?

That's actually incorrect. At the time, the strongest opposition to Desegregation came from southern Democrats - the Republicans were largely for bills like the 1964 Civil Rights Act.

If courts really outlawed segregation what was Civil Rights Act about?

The 1964 Civil Rights Act was one of the final nails in the coffin of official Desegregation (unoffical private discrimination is and has been much trickier to wipe out), and it came after nearly a decade of activism in the wake of Brown v. Board of Education that helped swing enough people in the non-South to support it.

I think it's questionable that it would have been passed without that precedent.

[TrackerNeil]

That's actually incorrect. At the time, the strongest opposition to Desegregation came from southern Democrats - the Republicans were largely for bills like the 1964 Civil Rights Act.

The 1964 Civil Rights Act was one of the final nails in the coffin of official Desegregation (unoffical private discrimination is and has been much trickier to wipe out), and it came after nearly a decade of activism in the wake of Brown v. Board of Education that helped swing enough people in the non-South to support it.

I think it's questionable that it would have been passed without that precedent.

And it's interesting to note that most of those Democrats became Republicans shortly after.

It always makes me laugh when people object to courts overruling the will of the legislatures. If courts are simply to rubber-stamp Congress or state legislatures, we might as well forget about judicial review and turn our three branches of government into two. We appoint federal judges for life supposedly to ensure they aren't controlled by the whims of popular opinion, or so I was told. It's for that same reason that I oppose most referenda, which are what gave us happy fun-time laws like Prop 8. The idea that a state can change its constitution on a 50.1% vote is...staggering. If that held on the federal level, we'd have about ninety amendments, the second half of which would be repealing the first half.

BTW, I see Elena Kagan was confirmed to the Supreme Court, 63-37. I know I am supposed to be outraged by the relative lack of Senate support, but honestly it doesn't bother me in the slightest. Thomas was confirmed by only two or three votes, and his position on the Court hasn't suffered any because of it.

[sToNED_CAT]

It always makes me laugh when people object to courts overruling the will of the legislatures. If courts are simply to rubber-stamp Congress or state legislatures, we might as well forget about judicial review and turn our three branches of government into two. We appoint federal judges for life supposedly to ensure they aren't controlled by the whims of popular opinion, or so I was told.

The problem is when courts take extreme liberties when interpreting the constitution, often finding things that simple were not there (implied right to privacy, Roe etc.).

The idea that a state can change its constitution on a 50.1% vote is...staggering. If that held on the federal level, we'd have about ninety amendments, the second half of which would be repealing the first half.

On the other side, if people were able to change federal constitution on 50+ vote the slavery and Jim Crow laws(for example)would have been abolished much sooner. Every coin has two sides.

[DanteGabriel]

On the other side, if people were able to change federal constitution on 50+ vote the slavery and Jim Crow laws(for example)would have been abolished much sooner. Every coin has two sides.

Bullfuckingshit.

[Alcibiades]

It always makes me laugh when people object to courts overruling the will of the legislatures.

The courts can best be understood as a refuge for those who lose battles in the political branches of government. You see this from California liberals, and in Republican state challenges to the health care law. Legal arguments are completely subordinate to policy preferences.

It's why all the right-wing whinging over "judicial activism" is so daft. Liberals, at least, don't torture us so much with pious homilies about the intent of the founders and the limited role of judges.

[Spring Bass]

The problem is when courts take extreme liberties when interpreting the constitution, often finding things that simple were not there (implied right to privacy, Roe etc.).

The "right to privacy" was hardly an "extreme liberty" when the court found it to exist in Griswold v. Connecticut. It was just the Court recognizing that there other rights than those enumerated specifically in the Constitution, and that an effective "right to privacy" existed already as a side-effect of the explicitly written rights.

[Ser Reptitious]

FLOW,

And when that happens, you'll win the right in state legislatures or referendums anyway, and there won't be a need to have courts usurp the legislative function. That's the way it's supposed to work.

Remind me again, how many referendums were held on whether Chicago's handgun ban should be upheld?

I love it how Republicans such as yourself get all constitutional when anything involving guns is at issue, but when we're talking about marriage equality, suddenly the constitution might as well not exist and it's all about "the will of the people"!

Do you mean legal arguments against a legislature or referendum that enacts gay marriage? No, unless they're based on something in a particular state's constitution.

If you mean legal arguments against judges mandating it, of course.

No, I mean legal arguments that justify discriminating against gays by denying them the right to marry

[lokisnow]

Liberals, at least, don't torture us so much with pious homilies about the intent of the founders

The intent of the founders when they explicitly wrote 'NO Gayz Marraige!" into Article I of the constitution was pretty clear, John Adams was pretty squicked out by George Washington and figured that if they let the Gayz marry George would drop the old biddy Martha for that Hawt Young Thang Hamilton, and that's just so wrong it needed to be stopped right at the beginning.

This is a secret part of the constitution, it was written in lemon juice and can only be seen by the red light of Paul Revere's lantern filled with republican refined kerosene, but it shows clearly that that founders totally had intent against the squicky butt secks going on between married men.

[Ser Scot A Ellison]

FLOW,

Do you mean legal arguments against a legislature or referendum that enacts gay marriage? No, unless they're based on something in a particular state's constitution.

If you mean legal arguments against judges mandating it, of course.

Once a given State enacts Homosexual marriage how can other States pretend not to recognize the validity of those marriages given the express terms of the Full Faith and Credit clause without requiring Heterosexuals to get remarried every time they move to a new State or travel out of State?

State's refusing to give homosexual marriages full faith and credit is certianly a proper issue for Courts to take up as what we would be seeing is conflicts of State laws and Federal laws with the clear terms of the U.S. Constitution. Resolving those types of conflicts are a big reasons Courts exist.

I do prefer using the legislative process to enact homosexual marriage. However, I also agree this is a 14th Amendment issue. I have no problem seeing homosexual marriage legalized using this reasoning.

lockesnow,

The sexual tension in the Washington White House would not have been between Adams and Hamilton. It would have been between Jefferson and Hamilton. They both really wanted Washington's ear.

[Annelise]

The sexual tension in the Washington White House would not have been between Adams and Hamilton. It would have been between Jefferson and Hamilton. They both really wanted Washington's ear.

:wideeyed: Thanks for sending me off to work with that thought/image! Hee. Oh and thank you for the well wishes before; we get the keys to our new house today. There are still complaints to be made and damages to seek (re: our first lender), but we may commence with the moving now. :)

[Former Lord of Winterfell]

I think that is generally true. But are there exceptions, such as Brown vs. BoE? Or are there no exceptions?

I'm not saying that that the Court should never overturn a law. I'm saying they need a clear constitutional basis for doing so. There may be disagreement about whether such a basis exists in a given case, but if someone expressly acknowledges that recognition of a right is based on "evolving" views, morality, etc., as someone did upthread, then that is the same as saying the right didn't exist previously, and that's usurping the legislative function.

[Former Lord of Winterfell]

So, since when is marriage between a man and a woman a fundamental right? Marriage is a religious institution that has no place in civil law. IMO, anyway. It's just the zealots trying to interject themselves into politics as usual.

I agree. It's not. Not in the federal constitutional sense, anyway.

[Ser Scot A Ellison]

FLOW,

Given the express terms of the 9th Amendment can any right "discovered" really be called "new"?

[LindaElane]

I'm not saying that that the Court should never overturn a law. I'm saying they need a clear constitutional basis for doing so. There may be disagreement about whether such a basis exists in a given case, but if someone expressly acknowledges that recognition of a right is based on "evolving" views, morality, etc., as someone did upthread, then that is the same as saying the right didn't exist previously, and that's usurping the legislative function.

Yes, FLOW, but where was the constitutional basis for Brown vs. BoE. The point is that as I understand it, in the eyes of a strict constructionist, Brown vs. BoE never should have happened? Or am I wrong?

Ok, this may sound juvenile, but.....What about life, liberty and "the pursuit of happiness"? It seems to me that as long as your pursuit of happiness does no significant harm, then you have a right to enjoy it.

Yes, I know the phrase is from the Dec. on Independence, but do we just ignore the intent of the founders?

OK, back to the equal protection clause: doesn't this trump "tradition"? If we traditionally withheld equal protection, doesn't this have to stop?

Those arguing that gay marriage can't be halted on constitutional grounds have to show that gay marriage does some significant harm, imo.

I do not like the "kids need role models of both genders" argument. Even if they did - and there are cases where they do - that is a matter for adoption law and not for a large overall strikedown of marriage rights. (And obviously, for bio kids, the right to reproduce trumps any right which may exist to parents of opposite genders where possible.)

Where does the one man/one woman tradition come from, anyway?

Once upon a time the state did have an interest in large numbers of children being born, and though they let the infertile and seniors marry, and though they eventually forbade bigamy, they did not want to lower the population further by letting perhaps as much as 10% of the population withdraw from heterosexual marriage.

That interest no longer exists: we don't need lots of people to work on farms, etc. Heck, some would argue that states now have an interest in *decreasing* the population (I would not be one of them.)

So, could someone please explain what the state's interest is in forbidding gay marriage? If states have none, then I think we have to agree they have no constitutional right to forbid it, right?

I'm with Ted Olson on this :)

[Former Lord of Winterfell]

Uhh...same sex marriage proponents have won in state legislatures, which is what we were told to do in 2003 by conservatives angry at the Massachusetts Supreme Court. However, when we did that we were then told that we should actually win by popular vote. Once we do that, I expect we'll next be told to wait for official word from the gods. Moving the goalposts is a neat way to ensure your opponent never scores a point.

I'm not the one who set those goalposts in the first place. My point is that this is a matter of state law. The methods states use to set that policy, i.e., referendum, legislation, court decision, or whatever, is a function of state law.

As to courts "usurping the legislative function", it's certainly something conservatives have no problem with, at least when that usurpation benefits them. Or did more than a dozen state attorneys general not file suit against the Affordable Care Act the day it was passed? That piece of legislation was passed with a goddamned supermajority in the Senate, but that hasn't deterred those seeking conservative judicial activism.

I'm not saying that courts should never strike down laws. But I think these two examples you gave illustrate the issue pretty well.

There are two checks on federal power. The first, and most important, is that the federal government only has the power to do those things expressly delegated to it in the Constitution. It's supposed to be a government of limited powers. And if Congress exceeds that power, the only recourse is to ask the court system to rein them in. The ACA is being attacked on the ground that the federal government was never given the power to do this. This first limitation isn't applicable to the states because they all operate under their own state constitutions that gives their state government certain powers. So, it is entirely possible that a state can do something under its constitution that the federal government can't do, and can't require the states to do.

The second limitation is that even if the federal government was granted certain general powers, it can't exercise those powers in a way that violates rights specifically protected by the Constitution. Because of the 14th Amendment, those rights that the federal Constitution protects also are protected from state encroachment. So while states may have been granted power in their constitutions that the federal government doesn't have, both levels of government still are barred from violated the rights protected by the Bill of rights and subsequent amendments.

I think what has happened is that over time, the "limited power" aspect of the Constitution has been horribly eroded, until now, the Feds basically think they can do anything they want unless it violates a specific constitutional right. But to protect people from a federal government that now is unconstrained by the grant of limited power, the Court has manufactured new "fundamental rights". Of course, by doing that, the feds now have the power to poke their heads into state matters that properly are none of their business.

I don't believe that our Constitution makes marriage (between anyone) a "fundamental right" at all. In what amendment is that "right" found? I sure as hell don't see it. Whether citizens in general think that it should "morally" be a fundamental right is a completely separate question. But I don't see it in the Constitution at all.

Of course, just because it's not a fundamental right doesn't mean that the feds could pass all these laws relating to marriage, because I don't think the Constitution gives them the power to do that in the first place. So I don't think a federal law forbidding gay marriage should pass constitutional muster either, because marriage isn't something over which the feds were ever given power at all.

It's solely a matter for the states unless it violates the Equal Protection Clause, which is a separate issue. But I wanted to lay this out to show the conceptual distinction between a challenge to the ACA, and this judge's ruling.

Oh, there's another distinction that I think is equally important when discussing courts usurpation of the legislative role, and that involves the distinction between simply eliminating a law, and essentially writing a new law. The former is what is happening with the ADA. Nobody is asking the Court to act as a legislature and make choices regarding morality, which legislatures do all the time. They're simply asking the Court to eliminate the law. I don't think that type of "activism" is all that dangerous, because the most it does is maintain the status quo.

The other type of activism is when Courts do things that create affirmative obligations, or otherwise essentially engage in actions that are functionally indistinguishable from the actions of a legislature. That's what I think this judge did in California. He's essentially saying that California is required to pass a law permitted gay people to marry, and I think that's usurpation of the role of the legislature and/or public via referendum. And I don't see a clearly identified right to gay marriage in the Constitution that compels a different result.

[Former Lord of Winterfell]

Yes, FLOW, but where was the constitutional basis for Brown vs. BoE. The point is that as I understand it, in the eyes of a strict constructionist, Brown vs. BoE never should have happened? Or am I wrong?

I'm not sure what you mean by "never happened", but I think that Plessy was probably decided incorrectly. Had it been decided correctly, Brown would never have come up. If you read Brown, it doesn't say that the principle of separate but equal is unconstitutional. It says that the applicable of that princciple to education is functionally impossible, and that in the field of education, separate cannot be equal. So I actually think the Court in Brown was wrong, though I understand why they made the decision more narrow than it should have been.

Ok, this may sound juvenile, but.....What about life, liberty and "the pursuit of happiness"? It seems to me that as long as your pursuit of happiness does no significant harm, then you have a right to enjoy it.

Hey, I agree with you on a moral level. And to some extent, that concept is incorporated into the Constitution because of the limited grant of authority given to the federal government in the first place. Which, as I said above, has been horribly eroded.

OK, back to the equal protection clause: doesn't this trump "tradition"? If we traditionally withheld equal protection, doesn't this have to stop?

Yes, at least under the way I read the EP clause. If you buy into the whole "fundamental rights" analysis, though, then I'd say tradition = history, and you can't determine whether a right is "fundamental" without looking at history.

Those arguing that gay marriage can't be halted on constitutional grounds have to show that gay marriage does some significant harm, imo.

I think that generally, the question of "significant harm" is one legislatures should be addressing, not courts. And I don't think it is an equal protection violation under the 14th Amendment. For that matter, as abhorrent as they are, I'm not sure miscegenation laws violate the Constitution either, though there's a much stronger argument because of the clear racial aspect behind passage of the 14th amendment.

Where does the one man/one woman tradition come from, anyway?

I don't think equal protection is applicable to who someone marries, so I'd never get to this point. But if you're going to buy into the "fundamental rights" analysis, then the first question out of the block is defining the what that fundamental right is. And in that case, tradition -- or better yet, history, is directly relevant.

So, could someone please explain what the state's interest is in forbidding gay marriage?

Mostly moral, I suspect. Which shouldn't be an insufficient basis on which to pass laws.

If states have none, then I think we have to agree they have no constitutional right to forbid it, right?

Well, no. States don't need a constitutional right to forbid anything, other than whatever authority they have under their constitutions. The only restriction on that is if there is a specific federal constitutional prohibition. I don't see one for gay marriage, I don't see marriage as a federally protected constitutional right period, and I don't see it as an equal protection argument.

To me, an equal protection violation is apparent on its face, where one citizen is prohibited from engaging in the exact same conduct as another citizen. If the conduct in which they are engaging is different, then there isn't an equal protection violation. If nobody in the jurisdiction is permitted to marry a person of the same gender, the law is being applied equally to everyone. Now the law may not treat every relationship equally, but the EP clause refers to "persons", not "relationships". And personally, that's the exact argument I think will eventually end up reversing this judge's decision.

The Constitution isn't a document that says government should do whatever is good and right, though a lot of people seem to view it as if it does. Which is unfortunate, because what is good and right may depend greatly on the eye of the beholder.

[MinDonner]

Maybe we need to get away from this "marriage is a fundamental right" thing, which (of course) isn't explicitly spelled out anywhere, and move on to the "being treated equally by the law is a fundamental right", which is more to the point. If the law allows Couple A to marry but not Couple B, then that is unequal treatment; please don't tell me there's nothing explicit in the Constitution about that.

[Former Lord of Winterfell]

FLOW,

Given the express terms of the 9th Amendment can any right "discovered" really be called "new"?

If you're talking about a "right" specifically protected by the Constitution, yes. Both the 9th and 10th essentially amount to restatements of limited federal power. There was actually opposition to the Bill of Rights based on the grounds that if those rights were enumerated, some people might infer that the federal government could do anything it wanted unless it was specifically prohibited. Which, sadly, is almost where we are right now. The 9th was added to weaken the possibility of that inference. But ultimately, the 9th was a limit on federal power, and this case involves a federal judge encroaching on state authority, and I don't think there's a decent argument that's how the 9th amendment was intended.

[Former Lord of Winterfell]

Maybe we need to get away from this "marriage is a fundamental right" thing, which (of course) isn't explicitly spelled out anywhere, and move on to the "being treated equally by the law is a fundamental right", which is more to the point. If the law allows Couple A to marry but not Couple B, then that is unequal treatment; please don't tell me there's nothing explicit in the Constitution about that.

The 14th amendment says nothing about treating all relationships equally, and when you're talking about "couples", that's what you're doing. That, ultimately, is the flaw in the court's reasoning, IMHO.

Under the Court's reasoning, there must also be a constitutional right for parents or siblings to marry, as long as one of them is sterile. Now maybe people think that should be the law, but to argue that it is constitutionally required via equal protection seems pretty weak to me.