Wow.. Now I can Marry Him

[The Progressive]

If "liberty" is flexible enough to take into account "current views", then why can't that approach be used to shrink, not just expand, what those words actually mean? Using that methodology, a court could argue that the needs of modern society, including increased security we need, mean that "liberty" should be read far more narrowly than they have been in the passed. A floating definition can float both ways, and the people are powerless to protect their rights because any new amendment they pass is subject to redefinition as a matter of policy.

I applaud the ability to write such long-winded post stating the obvious. It's a shame though that my right to bear arms is so severely restricted by this redefinition/policy/meddling court that it now impede upon my right to carry rocket launcher or homemade nuclear weapons. :stillsick:

[Former Lord of Winterfell]

Furthermore, at the time the 4th Amendment was enacted, there was no such thing as a government police force, and if there was, it would have been a local government force, which in the 18th century would not have been subject to the 4th Amendment at all.

To the contrary, for the colonists, the British occupiers and troops amounted to a government police force, and people explicitly complained about British searches without warrants. The 14th amendment simply makes those restrictions applicable to the states.

Nor, by the way, is there any indication that it was intended to cover criminal investigations. I mean, what the 4th Amendment was for, as shown by those three cases, is to prevent the King’s cronies from ransacking your place and taking all your revolutionary pamphlets. Presumably it did not, say, prevent your neighbors from peering through your windows to see if you had a third nipple and conducted Sabbats at midnight and thereby deciding to burn you as a witch.

It didn't prevent your neighbors from doing anything. It did prevent the government from breaking into your house, though. That whole "state action" thing, you know.

To get to the point where a law designed to keep the King from snatching your pamphlets can protect you from thermal imaging technology that can spot your grow-lamps, well, let’s just say there’s a decent amount of expansion of the scope of that right that has to go on. Do you really not think so?

Actually, not. As I said, the 4th amendment was to protect the government from seeing and observing things that happened in a private home, and that's what thermal imagery does. It's not a leap at all.

Just to be clear, this is not what I think. I just mean to show that historical interpretations are malleable and can be made to say all kinds of things. That's why, you know, there's still this discipline called history - because it's not like we can just finally nail down what was going on in 13th century France and get on with it already.

I'd say the historical interpretations are much less malleable than interpretations of current opinion, which essentially amounts to judges either 1) claiming that a majority feels a certain way, and creating a new right based on that, or 2) claiming that the "trend" is in their direction, and adjusting rights based on that. Hell, even if it is done objectively rather than aiming towards a particular result, it results in elastic Constitutional rights whose survival hinges on Gallup polls.

It’s kind of a small point, but they certainly are. There's 4th Amendment search law also, the ECPA, and tort privacy law, but the constitutional privacy right under the 14th Amendment is, for instance, the one that would matter if I, as a federal employee, wanted to challenge the right of my office tech guy to read what I'm writing right now.

I don't agree that there is an independent constitutional "right to privacy" under the 4th or 14th. Properly applied, those amendments and the inherent limitation of a government of limited delegated powers do protect certain aspects of what we might call "privacy". But it is only those aspects, not a more general category of undefined "privacy" created by various "emanations and penumbras", that are constitutionally protected.

[Guest Raidne]

FLOW, I'm pretty sure I explicitly said that I was not stating my own view whatsoever, but was merely making the case that different interpretations are certainly possible. I ripped off the analysis I posted from a historical investigation into the subject.

Suffice it to say that I don't think your counterarguments are so convincing that they prove there is One Right Answer as to how something should be interpreted from an Originalist standpoint. Minimally, people who are specialists on 4th Amendment history disagree with you.

Just logically, current interpretations are less subject to this because it's one step less complicated. Historical analysis has all the same complications as looking to current interpretations - how could it not? - plus the additional shroud of inaccuracy, guesswork, and reconstruction that any historical investigation is prone to.

[Former Lord of Winterfell]

FLOW, I'm pretty sure I explicitly said that I was not stating my own view whatsoever, but was merely making the case that different interpretations are certainly possible. I ripped off the analysis I posted from a historical investigation into the subject.

Fair enough.

Suffice it to say that I don't think your counterarguments are so convincing that they prove there is One Right Answer as to how something should be interpreted from an Originalist standpoint. Minimally, people who are specialists on 4th Amendment history disagree with you.

And some agree. But I get your point, and thanks for the good discussion, btw. Leaving off the technical aspects for a bit, doesn't it concern you somewhat that the "living document" theory can just as easily justify the lessening of constitutional protections, because of shifting definitions and understandings?

Just logically, current interpretations are less subject to this because it's one step less complicated. Historical analysis has all the same complications as looking to current interpretations - how could it not? - plus the additional shroud of inaccuracy, guesswork, and reconstruction that any historical investigation is prone to.

Understood. But there are two virtues of looking at historical understandings that I think should be considered. The first is that because that are already in the past, that record is much less subject to tampering. By that I mean is that if someone wanted to argue for a new constitutional interpretation based on current definitions/beliefs, you could simply have similarly-minded folks write a bunch of law review articles, makes speeches, hold symposiums, etc., and manufacturer enough of a current debate to permit a judge to essentially rewrite the law in the grounds that there supposedly has been a "change" in opinion. At least the historical record is comparatively fixed.

The second point is that I'm not at all sure that measuring current attitudes really is any more feasible. Presumably, the issue has reached some level of controversy and notoriety if it makes it all the way to the Supreme Court. There will be debates, arguments, polls, etc.. How does a judge objectively wade through that to determine the where the weight of opinion truly lies since the argument is still in flux? Lick his finger and stick it in the air? Gallup polls? And I'm not even being facetious about that, because I think if you buy into that analytical approach, Gallup or other polling companies probably are better than any other source if you're trying to determine "current definitions". And given how most folks here seems to believe that the masses are so easily manipulated by the right-wing media cabal, do we really want to have the scope of our constitutional rights dependent on polls? Especially given how public opinion on various issues has been known to shift significantly over time.

[Guest Raidne]

By that I mean is that if someone wanted to argue for a new constitutional interpretation based on current definitions/beliefs, you could simply have similarly-minded folks write a bunch of law review articles, makes speeches, hold symposiums, etc., and manufacturer enough of a current debate to permit a judge to essentially rewrite the law in the grounds that there supposedly has been a "change" in opinion.

Ha! To some extent, I think that's exactly what Louis Brandeis did. But he wrote an article, people found it to be persausive, and then the idea was adopted broadly in the legal community. But it's not as dynamic as it looks - it's not really about changes to the meaning, usually, it's about scope - broadening and limiting scope. It's not a free for all.

The second point is that I'm not at all sure that measuring current attitudes really is any more feasible. Presumably, the issue has reached some level of controversy and notoriety if it makes it all the way to the Supreme Court. There will be debates, arguments, polls, etc.. How does a judge objectively wade through that to determine the where the weight of opinion truly lies since the argument is still in flux? Lick his finger and stick it in the air? Gallup polls? And I'm not even being facetious about that, because I think if you buy into that analytical approach, Gallup or other polling companies probably are better than any other source if you're trying to determine "current definitions".

No, I seriously agree. Any legal realist would.

See, I'm not the kind of person who thinks there is any one true answer. I like balancing tests. And multi-factor tests. And I like throwing all possible methods of interpreting something at it and seeing what it looks like at the end of the day, looking at the totality of all the evidence - plain meaning in the text, if there is one, historical meaning, current meaning, rules of construction, legislative history, etc. So, in looking at, say, the second amendment, I think the grammatical structure of the clauses matters just as much as the debate on the floor when it was passed, and that our current understanding of the right to bear arms (which, IMO, is an individual right to bear arms) should also factor in there.

(As it did - you know there's no other way to get from A to B on that one. For Lev's sake, you might mention that :P)

But anyway, you need all these things. Otherwise, WTF do I do with the anti-gender discrimination part of Title VII, added for the express purpose of sinking the bill? Is it relevant to ask what their thoughts on maternity leave was?

Fortunately, the current issue is nowhere near as complicated. Case precedent already establishes marriage as a fundamental right, and nobody's been able to state a legitimate state interest. :)

[Former Lord of Winterfell]

u might mention that :P)

But anyway, you need all these things. Otherwise, WTF do I do with the anti-gender discrimination part of Title VII, added for the express purpose of sinking the bill? Is it relevant to ask what their thoughts on maternity leave was?

Heh. Actually, that's why I'm generally not a fan of using legislative history. The truth is you can't know exactly what each representative or Senator voted the way he/she did, so the first recourse in interpretation has to be the text. And regardless of why it was offered, the gender prohibition in Title VII is inarguable.

Fortunately, the current issue is nowhere near as complicated. Case precedent already establishes marriage as a fundamental right, and nobody's been able to state a legitimate state interest. :)

Fair enough -- I think the battle against creating new "fundamental rights" outside the actual text and structure of the Constitution has generally been lost. But then, the key issue here is what was meant by "marriage", isn't it?

[Guest Raidne]

By who? There's no legislation or statute that makes marriage a fundamental right, so there's no identified time period to look to. I think the only thing we can ask is what it means now.

And, honestly, I misspoke. You don't even need the fundamental right analysis - that would raise the level of scrutiny closer to strict scrutiny, but we can hang out in rational basis-land under the equal protection clause or the due process clause since there's no stated legitimate state interest.

That's kind of a funny thing, isn't it? I mean, I'm not sure anyone could articulate a legitimate state interest in marriage, period, of any kind.

[Former Lord of Winterfell]

By who? There's no legislation or statute that makes marriage a fundamental right, so there's no identified time period to look to. I think the only thing we can ask is what it means now.

Didn't you say it was from the Constitution? ;)

And, honestly, I misspoke. You don't even need the fundamental right analysis - that would raise the level of scrutiny closer to strict scrutiny, but we can hang out in rational basis-land under the equal protection clause or the due process clause since there's no stated legitimate state interest

.

As you know, I don't think it's an equal protection violation at all because it regulates conduct, not status. But I don't want to go through all of that again....

[TerraPrime]

As you know, I don't think it's an equal protection violation at all because it regulates conduct, not status. But I don't want to go through all of that again....

I don't blame you. It's a silly, silly argument.

[The Progressive]

Not to mention legally indefensible and morally bankrupt.

[Guest Raidne]

Didn't you say it was from the Constitution? ;)

Nope, I don't see anything designating anything as fundamental, creating levels of scrutiny, or dictating that certain rights should get this thing called strict scrutiny. But that's a different question: are you OK with the Supreme Court creating these three levels of scrutiny, or do you think that is also properly a legislative function?

I'm not sure I've ever thought to ask a conservative that before.

As you know, I don't think it's an equal protection violation at all because it regulates conduct, not status. But I don't want to go through all of that again....

That's fine - you don't have to go there. It plays out the same under the Due Process or Equal Protection argument, because either way there's no articulated legitimate state interest.

By the way, normally that conduct/status thing plays out when we prohibit gay sex, and people argue that this doesn't get into being gay, blah, blah, blah, but that's not what the marriage prohibition is about anyway. It's about people with the status of "man" or "woman" not being allowed to marry people - enter into a new status, as a couple - with another person of the same sex.

[Former Lord of Winterfell]

Nope, I don't see anything designating anything as fundamental, creating levels of scrutiny, or dictating that certain rights should get this thing called strict scrutiny. But that's a different question: are you OK with the Supreme Court creating these three levels of scrutiny, or do you think that is also properly a legislative function?

I think the rational basis test is utter bunk, and shouldn't exist period.

I think the labelling of rights as "fundamental" v. "intermediate" is odd, but I don't have a huge objection to it. Where my objection comes about is creating new rights -- whether you call them fundamental or not -- that don't exist in the Constitution and giving them any status at all. Right to counsel? Yup, that's in there. Right to privacy? Nope, it's not.

[Guest Raidne]

Marriage, I think, is a plain 'ol statutory entitlement subject to due process like any other law, though. It's not like the entitlements have to be in the Constitution themselves, right?

When an entitlement is created by statute, and we come to think of it as a right, because the government created the entitlement, is that creating a new right?

I mean, if the government didn't get involved in marriage at all we wouldn't make churches marry people - it's not like we think it's a right outside of the state's creation of the entitlement and its attendant benefits.

[Former Lord of Winterfell]

Marriage, I think, is a plain 'ol statutory entitlement subject to due process like any other law, though. It's not like the entitlements have to be in the Constitution themselves, right?

That's really slithering into the equal protection analysis again though, isn't it?

When an entitlement is created by statute, and we come to think of it as a right, because the government created the entitlement, is that creating a new right?

It's not creating a new constitutional right, no. It's creating a new statutory right, which would be subject to equal protection.

I mean, if the government didn't get involved in marriage at all we wouldn't make churches marry people - it's not like we think it's a right outside of the state's creation of the entitlement and its attendant benefits.

Okay, then I still think we're circling around to equal protection rather than due process.

[Guest Raidne]

No, the due process clause applies to statutory entitlements just like it does constitutional "rights." Remember? There used to be that rights/privileges analysis thingy and then the Court threw it out? Usually you cover it in administrative law because there are also due process rights to administratively granted rights, as those are entitlements created by statute, most notably in the Goldberg v. Kelly case.

Naturally, these due process rights consume more of my waking hours than you would probably really care to know about. It eats up about a third of the paper in every decision I draft.

Anyway, so, no, the right to due process when it comes to statutorily created entitlements doesn't have anything to do with equal protection.

[Former Lord of Winterfell]

No, the due process clause applies to statutory entitlements just like it does constitutional "rights." Remember? There used to be that rights/privileges analysis thingy and then the Court threw it out? Usually you cover it in administrative law because there are also due process rights to administratively granted rights, as those are entitlements created by statute, most notably in the Goldberg v. Kelly case.

Naturally, these due process rights consume more of my waking hours than you would probably really care to know about. It eats up about a third of the paper in every decision I draft.

Anyway, so, no, the right to due process when it comes to statutorily created entitlements doesn't have anything to do with equal protection.

Ah, okay, I see where you're coming from. But I don't think it applies here because nobody is being deprived of their right under the law. It is the law itself that is being attacked.

[Guest Raidne]

Touche. Equal Protection it is.

[The Progressive]

Lifted from another thread, due to relevance here:

Rosa Parks' action was a political statement regarding unjust laws. Upsetting people was a necessary step if those laws were to be discussed and changed.

The building of this facility is purportedly to bring people together in peace and friendship. It has accomplished the exact opposite, rather predicatably. Now, it's just the moslem version of the "We're here, we're queer" chant. It may make them feel better, but it's not bringing anyone together except to choose sides.

So I don't see the Rosa Parks comparison as quite apt.

If we're to take Flow's argument throughout this thread to its logical conclusion, wouldn't the proper thing is to insist that Rosa Park cntinues to sit in the back of the bus for some more decades until the people of Alabama passed legislations prohibiting segregation for intrastate commerce?

[Lucky Pierre]

It's never occurred to me until now....who proposes in a homosexual marriage? Is it just kind of...whoever summons up the guts or is there some sort of tradition there?

Does it matter? ;)

Hey, it's great you can get married. But as a person that's been hitched going on 11 years i gotta ask: Why would you want to? :)

There are hundreds of reasons. And all but the most important relate to the legal issues that can arise during the course of any relationship. There is no reason that my relationship should be looked upon any differently than yours. A recent example: during the course of my recent termination I was asked repeatedly 'Who is James'. When I answered that he was my Fiance it was was totally dismissed. Dismissed to the point that a reason cited for my termination was my extension of my employee discount to James. Yet other employees are allowed to grant this discount to family members. This is discrimination-but there is nothing I can do about it.

The most important reason is that I love him, he loves me, and we want to get married so that we can share our love with our friends and families. Just like you do. (and I don't mean to single you out PB-but you asked. :) )

Good for you LP - here is hoping you get your wish sooner rather than later. :thumbsup:

Thank you my friend! :cheers:

And thanks to everyone that replied in this thread regarding gay marriage (and all it entails.) I appreciate the time and effort! And am going to have to read it all again.

[DanteGabriel]

Congrats, LP. It's great that you've found love. Maybe if more people did they wouldn't be so intent in standing in the way of others' love.