# Bush claims that he and he alone determines constitutionality of laws **URL:** \ **Category:** The BBQ Pit\ **Created:** [April 30, 2006, 8:19pm UTC](https://boards.straightdope.com/t/bush-claims-that-he-and-he-alone-determines-constitutionality-of-laws/354867 "2006-04-30T20:19:11Z")\ **Posts on this page:** 9\ **Page:** 6
**Author:** ![SteveG1](https://avatars.discourse-cdn.com/v4/letter/s/bb73d2/32.png) [@SteveG1](https://boards.straightdope.com/u/SteveG1)\ **Post date:** [May 4, 2006, 3:16pm UTC](https://boards.straightdope.com/t/bush-claims-that-he-and-he-alone-determines-constitutionality-of-laws/354867/101 "2006-05-04T15:16:14Z")
> [@John Mace](#): > > Since the establishment clause has been incorporated (ie, applied to the states), the SCOTUS would rule that the bill is unconstitutional. That’s how our system works now. No change needed. > > The problem (for folks like us) would be if a supermajority in the entire counry wanted such an amendment, and was able to get it passed. But let’s be serious here-- that ain’t gonna happen. At some point you have to trust the majority to rule itself, otherwise you don’t live in a democracy. Just for this thread discussion, What If? We’ve all seen the christofascists in the news. We’ve heard their calls for a chrsitian amerika on the radio. By now, most of us probably know something about dominionism and christian reconstructionism. So, What If it did happen, and they did get enough numbers to vote in a referendum or bill or proposition? Would I be the only one trying to cash in for retirement and flee to Canada? It won’t happen, but What If. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [May 4, 2006, 4:03pm UTC](https://boards.straightdope.com/t/bush-claims-that-he-and-he-alone-determines-constitutionality-of-laws/354867/102 "2006-05-04T16:03:57Z")
> [@Polycarp](#): > > Yahbut, John, this is **exactly the point**. The idjits nagging that “laws should be made by elected legislators, not by unelected judges” would maintain that that ruling would be going against “the will of the people” – at least, that’s how they’re behaving now on less egregious Establishment Clause offenses, like the Speaker of the State House of Reps. in Indiana deciding that a mandatory sectarian prayer to Jesus was a _fine_ way to open sessions of the House. I can’t speak for those idjits, as I’m not one of them. 🙂 But what’s the alternative? Do you want a SCOTUS whose decisions can’t be overturned by the people? If so, be careful what you wish for. I’m sure you know that the justices will not always rule according to your own political beliefs. > [@](#): > > For the record, SSM in a nutshell: our Constitution provides (14th amendment) that all citizens shall be entitled to equal protection of the laws. There is, at present, precedent that there is a right to marry, though it is regulable but evidently under intermediate if not strict scrutiny with regard to such regulations. I think it might be a legitimate assumption to say that (1) there would be a great deal of opposition to reversing _Loving_ on there being a constitutional right to marry, and (2) the right comprises a right to marry someone of one’s choice, that choice being mutual, not an abstract right to engage in a marriage ceremony under some arbitrary conditions. The Federal government and every state have established specific privileges and immunities associated with marriage, ranging from the right of a couple to enter into possession of real property by tenancy of the entireties to surviving spouse exemptions and entitlements on a wide range of heritable entities. > > If some people are entitled to engage in marrying the person of their choice and hence to jointly share with that person in those privileges and immunities, while others are not, that constitutes unequal protection of the laws. > > There are clearly huge loopholes in that argument, but each one is IMO legitimately crossed. C.J. Warren jumped the biggest one 50 years ago: being able to marry is a “fundamental right” even though not enumerated in the constitutional text. (Granted that he was dealing with a marriage across racial lines in violation of an invidious statute, his statement was not some weasel-worded assertion that there is a privilege to marry which states may grant or deny at their pleasure but not restrict on the basis of race, but rather a blunt assertion that the liberties of U.S. citizens include a fundamental right to marry.) I believe it is safe to say that popular understanding holds that right to be one to marry the person one loves, not a right to enter into a marriage arranged by one’s patriarch with one’s prospective spouse’s patriarch without reference to the parties contracting the marriage, or other scenarios not matching contemporary society. Further, while marriage is a private contract, it is one in which the state has seen fit to involve itself by regulating it and granting it privileges. Ergo, there exist a class of people, those of gay orientation, who are restricted by law from engaging in a legally privileged action in which the rest of us are free to engage: the right to marry the willing person of one’s choice. That violates equal protection. Oh, I understand that reasoning perfectly well, and I’m not saying it’s wrong. It’s one interpretation, but by no means the only valid interpretation. Again, going back to the idea of democracy… Can there be any doubt whatsoever that a 14th amendment that explicitly mandated SSM would not have passed in 1868, 1968, 1998 or 2006? On some things it’s hard to know, but on this I think we can be 110% certain. Personally, I have a problem with the justices interpreting an amendment in a way that so few people or legislators would. Remember the judicial argument the court used to ban capital punishment for minors-- that so many states had banned it that it was the growing consensus? Well, what is the growing consensus about SSM in recent years? Again, I’m not saying that that precludes an interpretation such as yours. But again, be careful what you wish for. Should the SCOTUS so interpret the 14th amendment, I’m certain that an anti-SSM would pass, and there’s no telling how broad its scope would be. While I doubt it would make it illegal for states to allow SSM, it would clearly allow states to not ban it if they so choose. And that amendment would be very, very difficult to overturn, if it ever could be. I just don’t see the value in a SCOTUS ruling that mandates SSM by the states. Not at a time when so many states are banning it. I don’t like the bans. I voted against just such a ban in CA several years ago. And if we were talking about laws that ciminalized homsexuality itself, or gay sex or the cohabitation of same sex partners, I’d agree with you. But frankly, the “marriage is a fundamental right” does not stand up to logical scrutiny. Marriage is a priviledged state bestowed on couples by society. That statement, made in _Loving_, was clearly a product of its time: people did not cohabitate, sex outside of marriage was still taboo, and (most importantly) no one thought of marriage as anything other than a union of a man and a woman. > [@](#): > > The bottom line, though, is not about SSM or anything else, but the issue that judges interpret and apply the law. The neocons seem to hold that any law, no matter how questionable from a constitutional law standpoint, which a legislature has seen fit to pass, should supersede the judgment of the courts. The Establishment Clause-violating mandatory-Baptist law held up as _reductio ad absurdam_ which you properly said that SCOTUS should throw out is an obvious case. But there are far less obvious examples: the old maxim, “Bad cases made good law,” is quite valid. To their credit, the ACLU is defending the right of Fred Phelps to picket funerals in violation of, I think, Tennessee law. Not that anyone, far less the ACLU, thinks Fred is anything short of a loon. But as an American citizen, he has freedom of speech, the right to preach his hatemongering, much as it may disgust us. Terrible case: nearly the only thing worse is arguing that the confession forced from a man who raped, sodomized, and murdered a seven-year-old girl is inadmissible as being a forced confession. But nonetheless an issue to be decided by the courts on constitutional grounds, not by legislatures blithely superseding constitutional protection or on whether one’s gut instinct is to vomit at the idea. > > Rule by law, not by arbitrary fiat. With rights protected against anything short of a constitutional amendment. Something we stand in some danger of losing, these days, and that we need to band together, liberal, conservative, libertarian, and statist, to protect. I’m not a neocon, so I can’t speak for them. However, it’s unclear what you’re saying about their position-- are you saying the disagree with the concept of judicial review? I doubt it. Anyway, I’m not arguing that the legislatures should be immune from judicial review. I just don’t understand what objection you and others here are raising to my main point: No matter what you think is the source of civil rights, there is no acceptable way to determine what they are except to subject them to a referendum of the people. We have very wisely made that referendum consist of a supermajority. So unless you are suggesting that some rights should be so sacrosanct that we should never allow a vote on them (no matter what supermajority that vote would consist of), then we really don’t disagree. And if you are suggesting that, then tell me by what method we enshrine those rights into law, because I can’t believe you’d agree to a method that did not consist of some sort of vote by the people or their representatives. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [May 4, 2006, 4:11pm UTC](https://boards.straightdope.com/t/bush-claims-that-he-and-he-alone-determines-constitutionality-of-laws/354867/103 "2006-05-04T16:11:32Z")
> [@SteveG1](#): > > Just for this thread discussion, What If? > > We’ve all seen the christofascists in the news. We’ve heard their calls for a chrsitian amerika on the radio. By now, most of us probably know something about dominionism and christian reconstructionism. > > So, What If it did happen, and they did get enough numbers to vote in a referendum or bill or proposition? Would I be the only one trying to cash in for retirement and flee to Canada? > > It won’t happen, but What If. Meh. “What if” the raging left-wing socialists declared an end to private property, and mandated that the new overriding principle for the United Socialist States of Amerika was: “From each according to his ability. To each according to his need”? what if they required everyone who earned more than $15k/year be sent to re-education camps? I’m equally afraid of that scenario as I am of the one you laid out. Which is to say, I’m not in the least bit afraid of either one. ---
**Author:** ![Oy](https://avatars.discourse-cdn.com/v4/letter/o/bc8723/32.png) [@Oy](https://boards.straightdope.com/u/Oy)\ **Post date:** [May 4, 2006, 7:46pm UTC](https://boards.straightdope.com/t/bush-claims-that-he-and-he-alone-determines-constitutionality-of-laws/354867/104 "2006-05-04T19:46:46Z")
Given their prior behavior, just which scenario do you think is more likely, **John**? There are precious few people in the US, even us stinkin’ libruls, who would advocate communism as a form of government. There do seem to be, unfortunately, quite a few people who seem to feel that being a fundamentalist (insert your religion here, but mostly Christian) gives one the right to dictate not only propriety but law, or at least that it should. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [May 4, 2006, 7:59pm UTC](https://boards.straightdope.com/t/bush-claims-that-he-and-he-alone-determines-constitutionality-of-laws/354867/105 "2006-05-04T19:59:20Z")
> [@Oy!](#): > > Given their prior behavior, just which scenario do you think is more likely, **John**? There are precious few people in the US, even us stinkin’ libruls, who would advocate communism as a form of government. There do seem to be, unfortunately, quite a few people who seem to feel that being a fundamentalist (insert your religion here, but mostly Christian) gives one the right to dictate not only propriety but law, or at least that it should. Well, exactly how many people in the US advocate the position that \*\*Steve \*\*outlined? And even if more advocate that position now than the communist scenario I outlined, that certainly wasn’t true 30 years ago. And how many Western Nations have, in modern history, become Theocracies? None. How many have become communist nations? Poland, Hungary, Czechoslovkia, East Germany… need I go on? I think both scenarios are ridiculous and have only a few advocates. The difference in their number is meaningless, because both numbers are tiny, and change over time. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [May 4, 2006, 8:05pm UTC](https://boards.straightdope.com/t/bush-claims-that-he-and-he-alone-determines-constitutionality-of-laws/354867/106 "2006-05-04T20:05:56Z")
Nope, we’re both in favor of the same thing, **John** , from what I’ve seen: laws made by legislators, which cannot go against certain requirements that require a supermajority and complex ratification process to change. My point, such as it was, is that a lot of neocons seem to be arguing _against_ the right of the courts to overturn a law that **does** go against such requirements – or even a school administrator’s regulations that do. I trust the wisdom of the American people to change the Constitution carefully and after careful thought, as provided in its Article V. I do not trust 50%+1 of the voters, or even sometimes 50%+1 of the people they elect, to exercise the same wisdom consistently. And that’s where judicial review comes in, IMO. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [May 4, 2006, 8:37pm UTC](https://boards.straightdope.com/t/bush-claims-that-he-and-he-alone-determines-constitutionality-of-laws/354867/107 "2006-05-04T20:37:59Z")
> [@Polycarp](#): > > Nope, we’re both in favor of the same thing, **John** , from what I’ve seen: laws made by legislators, which cannot go against certain requirements that require a supermajority and complex ratification process to change. I thought so. > [@](#): > > My point, such as it was, is that a lot of neocons seem to be arguing _against_ the right of the courts to overturn a law that **does** go against such requirements – or even a school administrator’s regulations that do. Not to belabor this point, but can you give an example? Are you really talking about neocons or social conservatives? But even if the latter, there are certainly people (even on this board) who seem to think that the court should not be constrained by constitutional considerations but should defer to a “higher principle” of justice. So where does that get us? There are whackos at both extremes of the political spectrum. ---
**Author:** ![SteveG1](https://avatars.discourse-cdn.com/v4/letter/s/bb73d2/32.png) [@SteveG1](https://boards.straightdope.com/u/SteveG1)\ **Post date:** [May 5, 2006, 12:47am UTC](https://boards.straightdope.com/t/bush-claims-that-he-and-he-alone-determines-constitutionality-of-laws/354867/108 "2006-05-05T00:47:47Z")
> [@John Mace](#): > > Well, exactly how many people in the US advocate the position that \*\*Steve \*\*outlined? And even if more advocate that position now than the communist scenario I outlined, that certainly wasn’t true 30 years ago. And how many Western Nations have, in modern history, become Theocracies? None. How many have become communist nations? Poland, Hungary, Czechoslovkia, East Germany… need I go on? > > I think both scenarios are ridiculous and have only a few advocates. The difference in their number is meaningless, because both numbers are tiny, and change over time. It wasn’t a position, it was a question. For the record, I have absolutely no use for the Commies either. But, since this is an election year for congresscritters, maybe these snippets will liven up the discussion: I found this on Daily Kos and it bears on the discussion. Before anyone jumps up and yells about Kos being liberal (they are anyway), they do cite the source article where they found this. > [@Daily Kos](#): > > The article also has a great quote from David Barton, second-in-command of the Texas Republican Party, identified in the story as “the founder of WallBuilders, a Texas-based group committed to ‘educating the nation concerning the Godly foundation of our country.’” Barton says: The Bible had a huge impact on the signers of the Constitution. You bet it did, Mr. Barton. So much impact that they’d observed what a bad idea it was to mix biblical law and secular government and took pains to steer clear of doing so. > > It’s also interesting to note what’s not going to be addressed legislatively in the upcoming weeks: stem cell research and abortion, two issues that a majority of this country is in favor of keeping legal. Kinda makes you go … hmmmm… From their cited article in the Christian Science Monitor > **[Bible's profile at the Capitol touches a chord](https://www.csmonitor.com/2006/0504/p01s03-uspo.html)** > > Bible reading wasn't on the itinerary. But when Hun Jang stepped off a Washington tour bus this week and heard scripture coming from the west lawn > [@CSMonitor](#): > > GOP leaders are gearing up to bring a number of issues on the Christian conservative agenda to the floor of the House and Senate in the next few weeks, including gay marriage, broadcast decency, the 10 Commandments Act, a cloning ban, and laws protecting “under God” in the Pledge of Allegiance. > > “There’s going to be some trouble down the road if they don’t get on the ball,” said Dr. James Dobson, in an interview with the Fox News Network on May 1. He’s the chairman and founder of Focus on the Family, a Christian organization based in Colorado Springs, Colo., which is helping to organize some 40,000 events for the National Day of Prayer. Also from the CS Monitor > **[Georgia may OK Bible as textbook](https://www.csmonitor.com/2006/0327/p02s01-ussc.html?s=widep)** > > If a new law passes, it would be the first state to establish the Bible in its public school curriculum in modern times. > [@CS Monitor](#): > > Others worry that this trend - Alabama and Missouri are also considering statewide Bible study classes - is part of the broader culture war over the role of religion in civic life, and seeks to satisfy social conservatives rather than enlighten students. > > “This is a political issue as much as it is a religious issue,” says Frances Paterson, a professor at Valdosta State University who specializes in religion and public education. “I would guess that [its sponsors] hope that nobody is going to police this, and when people step over the line, it’s going to be ignored, either because nobody’s aware of it or they’d be intimidated into not objecting.” Any comments? Like Polucarp said (I think that was who said it), I don’t care for some wingnut trying to tell me they will decide who, how and if I worship anyone or anything. If I want to build a shrine to Bob and the Stark Fist of Removal, it’s my business. ---
**Author:** ![SteveG1](https://avatars.discourse-cdn.com/v4/letter/s/bb73d2/32.png) [@SteveG1](https://boards.straightdope.com/u/SteveG1)\ **Post date:** [May 5, 2006, 1:24am UTC](https://boards.straightdope.com/t/bush-claims-that-he-and-he-alone-determines-constitutionality-of-laws/354867/109 "2006-05-05T01:24:58Z")
[http://wordnet.princeton.edu/perl/webwn?s=inalienable](http://wordnet.princeton.edu/perl/webwn?s=inalienable) > [@Wornet Search](#): > > Adjective > > ``` > * S: (adj) inalienable, unalienable ( **incapable of being repudiated** or transferred to another) "endowed by their Creator with certain unalienable rights" > * S: (adj) **unforfeitable** , inalienable (not subject to forfeiture) "an unforfeitable right" > > ``` > **[Answers about Human Rights](https://www.answers.com/t/human-rights)** > > This category gathers all the questions about the basic rights and freedoms to which all human beings are entitled. Questions should include but are not limited to the right to life and liberty, freedom of thought and expression, and equality before... > [@Answers dot com](#): > > human rights, universal rights held to belong to individuals by virtue of their being human, encompassing civil, political, economic, social, and cultural rights and freedoms, and based on the notion of personal human dignity and worth. Conceptually derived from the theory of natural law and originating in Greco-Roman doctrines, the idea of human rights appears in some early Christian writers’ works and is reflected in the Magna Carta (1215). The concept winds as a philosophical thread through 17th- and 18th-century European and American thought, including the Declaration of Independence (1776) and the French Declaration of the Rights of Man and Citizen (1789). … The noun human right has one meaning: > > Meaning #1: **any basic right or freedom to which all human beings are entitled and in whose exercise a government may not interfere** (including rights to life and liberty as well as freedom of thought and expression and equality before the law). … Human rights refers to the concept of human beings as having universal rights, or status, **regardless of legal jurisdiction or other localizing factors** , such as ethnicity and nationality. > > The existence, validity and the content of human rights continue to be the subject to debate in philosophy and political science. Legally, human rights are defined in international law and covenants, and further, in the domestic laws of many states. However, there is still a great deal of variation in how these norms are defined and upheld. > > Within particular states, “human rights” refer to \*\*safeguards for the individual against arbitrary use of power by the government (or by any private entity) \*\*regarding 1) the well being of individuals, 2) the freedom and autonomy of individuals, and 3) the representation of the human interest in government. [http://www.answers.com/main/ntquery;jsessionid=7i9aouqncdcj6?method=4&dsid=2222&dekey=Inalienable+rights&curtab=2222\_1&sbid=lc06b](http://www.answers.com/main/ntquery;jsessionid=7i9aouqncdcj6?method=4&dsid=2222&dekey=Inalienable+rights&curtab=2222_1&sbid=lc06b) > [@](#): > > The term inalienable rights (or unalienable rights) refers to a set of human rights that **are said to be absolute, not awarded by human power, not transferable to another power, and incapable of repudiation**. Several different sets of inalienable rights have been suggested by philosophers and politicians. > [@](#): > > “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men.” The above words do not say “we give you these rights”, they say “in order to secure”, which to me means, in order to recognize and protect what you already have as human beings. What follows is a far more cynical approach, but still interesting… [http://www.semperliber.org/RightsComparison.htm](http://www.semperliber.org/RightsComparison.htm) > [@SL - Rights](#): > > The UN acknowledges only the state, not any supreme organizing intelligence that is responsible for the order of the universe, it doesn’t acknowledge the author of natural law. This is in direct opposition to the basic American view that there is a supreme being that is the author of natural law who acted to create humankind that possesses intelligence and the capacity to develop that intelligence. So, the distinction between the UN globalist view of rights - which are actually privileges by definition - and the American view of rights - is night and day. Americans believe rights are inalienable, that is that they are non-transferrable, **not being in the human domain to grant or revoke**. Thus government is of the people, by the people and for the people. > > UN rule, on the other hand, is _capricious and can decide - based on political currents of the times and the whim of corrupt individuals with their own agendas_ - which rights they will grant and which they will revoke, placing the subjects of that tyranny under an arbitrary system of laws where those subjects are never sure whether they are violating some law and must therefore always seek permission prior to doing just about anything, for fear of running afoul of arbitrary, capricious statutes and their dire consequences (read “cruel and unusual punishment”…). … You see, the Bill of Rights **only ACKNOWLEDGES rights already bestowed by a higher authority. It doesn’t grant them**. The real difference is that these inalienable rights are placed outside the domain of humankind, unlike the UN version which clearly places “rights” in the domain of government or of law, thus actually defining privileges while calling them “rights”. [http://www.pacificwestcom.com/laws/](http://www.pacificwestcom.com/laws/) > [@Pacific Western - Laws vs Freedom](#): > > Thomas Jefferson: > "Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. > > I do not add ‘within the limits of the law’, because law is often but the tyrant’s will, and always so when it violates the rights of the individual. ~~" > > * * * > > The saddest part of our countries condition, is _our laws and legal system’s so called ``interpretation" of our basic law foundations of freedom_. > > How can respect be shown to laws, legal systems, judges or law officers when they themselves do not obey and uphold the laws that supersede and legitimate all other laws in this country. [http://www.carolinajournal.com/exclusives/display\_exclusive.html?id=3200](http://www.carolinajournal.com/exclusives/display_exclusive.html?id=3200) > [@Carolina Journal](#): > > Then there’s also the problem of using the term “inalienable” to refer to the right of citizens to access public records and government meetings. **This term has a very specific meaning** , referring to the Lockean concept of a social contract underlying legitimate government. As North and many others point out, there was no actual contract made at the start of any government whereby all future citizens agreed on what powers they were surrendering to the state and how it would conduct its affairs. Sensible theorists, including Locke, never believed that. Instead, the idea was that a sort of implied contract was formed, through migration and assent to authority, in which individuals recognized the power of the state to perform actions collectively that they could not as effectively do on their own, **while retaining certain freedoms of action that could not be infringed by the state**. > > The first group, the actions individuals give up to the state, represent alienable rights. You give them up in order to gain the benefits of government. The second group, the freedoms retained, represent inalienable rights. These include, famously, the rights to life, liberty, and the pursuit of happiness. They do not include openness in government, important as it is, because the concept is meaningless in the absence of a government. > > Both alienable rights (such as the use of physical force to decide a dispute, given up upon entering the social contract) and inalienable rights (the right to use force for self-defense, never given up) are **natural rights. That is, they exist because they reflect what it means to be a distinct human person. Government can respect (or disrespect) natural rights but it does not create them**. Civil rights, on the other hand, are created by government. They often involve issues of justice, fairness, or practicality in carrying out legitimate government functions. I believe all the above reitireates my original position, in the more verbose words of other people. The Jefferson quote (in red) pretty well matches what I have already said, about those rights which the government can not, or must not fuck with (the inalienable ones). 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