But there are disagreements on what rights exist or existed already in pre-existing laws. Your interpretation is one way to look at it, but not the only way, especially considering the language of the 9th amendment, directly implying that there are other rights in existence in addition to those specifically laid out in the Constitution.
The Ninth is an aid to construction, not a source of rights.
And the Tenth Amendment furthers the goal of limiting the powers of government only and solely to those granted it by the Constititution. The power of adding to, subtracting from, or altering, the list of rights belongs to the legislature (insofar as a right is established by law) or to the states or the people. Since the Constitution does not grant that right to the Supreme Court, the Supreme Court may not do so.
Mostly a nitpick, but if the Constitution says neither “may” or “shall”, then the power to do that belongs to the states or the people.
Then by all means quote the law that defines marriage as the union of two men or two women.
Regards,
Shodan
I did (in terms of what law includes that right) – the 5th and 14th Amendments, according to the majority opinion for Obergefell. You might disagree with their interpretation of those amendments, but according to them, the 5th and 14th Amendments implicitly include that right.
Ok that’s a reasonable position to take. It is however, different than what you said prior. This part right here:
That is a false statement. Do you agree?
Of course. However, to have a right of self-defense, taken along with the 1688 English Bill of Rights, and 2nd amendment where common people were expected to have commonly used weapons available at the ready, the sovereign’s power to determine what types of weapons people may possess does not logically extend to “no weapons at all.”
So it is now a legitimate exercise of judicial power to look at the particular facts of the case (a complete ban on all handguns) and determine, using historical and well-grounded law and not just making stuff up about dignity, if a sovereign can go so far as to ban a very basic weapon commonly used by millions of people for self-defense.
I believe that it is clear that Scalia used well grounded precedent to conclude that it could not.
Yes.
And it makes no difference to my point. Do you agree?
Regards,
Shodan
Yes. Though it may influence readers as to your presentation of your understanding of constitutional jurisprudence were it not simply an unintentional misstatement which was my assumption.
How do you know a given right “doesn’t exit,” given that the Ninth Amendment provides that they might? Can you demonstrate that the right to marriage is not provided for in the Ninth?
The states or the people decide what rights they want the federal government to protect. That’s called “enumeration”.
Regards,
Shodan
I don’t see where the 5th Amendment is mentioned in the majority opinion. Perhaps you can point it out?
The law? Cite?
There are 1138 of them. Were you really not paying any attention at all when the debate was still going on?
What is the distinction, either legally or morally?
I looked again and I could only find reference to the 14th, so I may have made a mistake (since the Due Process Clause, which is referenced, is almost identical in both amendments).
Other SSM rulings have included it, usually as a supporting argument. But the Massachusetts ruling in *Goodridge *made due process the primary argument.
His claim was not that you have been provided legal citations, but that the historical evidence had been presented.
You are right that “there aren’t any” because the law never established either that opposite sex unions were the norm or that same sex unions were prohibited.
Rather, the presumption, based on societal understanding and not enshrined in law, presumed opposite sex marriage was the norm. Your persistent claims that marriage was defined (in law) as only opposite sex unions is wrong and you persistently fail to provide any evidence to support your beliefs.
I’m confused: I thought the “Defense of Marriage Act” was exactly what’s being discussed: a Federal Law that defined marriage as the union of one man with one woman.
And it was struck down by the Supreme Court, wasn’t it? Isn’t that the answer to Shodan’s request for a cite?
Yes, under the Fifth Amendment … Obergefell v. Hodges was more specific in naming the 14th Amendment to overturn existing States laws banning SSM.
To clarify: the 14th Amendment equal protection and due process clauses apply to the states only, and were the basis of Obergefell (which struck down state SSM bans).
The Fifth Amendment (generally applicable to the federal government for EP/DP purposes) contains a due process clause but not an equal protection clause, but SCOTUS has generally treated it as though it did (at least since Bolling v. Sharpe, 347 U.S. 497 (1954), which applied the reasoning of Brown v. Board of Education to DC schools).
The word “marriage” may have never been defined in any statute, but its definition (before 2015) pre-dates the common law. Nobody ever talked about “opposite sex marriages” because the terms were redundant. Likewise nobody talked about a “same sex marriage” because it would have been an oxymoron.
Laws don’t say things like “murder where a death results” or “robbery where a larceny occurs” or “larceny involving the taking of the property of another.”
For example, my state code prohibits robbery as follows:
[QUOTE=W.Va. Code 61-2-8 (a)]
Any person who commits or attempts to commit robbery by: (1) Committing violence to the person, including, but not limited to, partial strangulation or suffocation or by striking or beating; or (2) uses the threat of deadly force by the presenting of a firearm or other deadly weapon, is guilty of robbery in the first degree and, upon conviction thereof, shall be imprisoned in a state correctional facility not less than ten years.
[/QUOTE]
No other place in the entire code gives a definition for the word “robbery.” Would you argue that the definition of robbery is only a “presumption” and “based on societal understanding” or would you concede that the common law, which carries the same force as statutory law, provides the definition?
Likewise, any previous discussion of marriage applied the common law meaning of that word. Although religion played a large part of it, the legal discussions regarding marriage assumed the common law requirement of opposite sex of the parties.
So, Shodan is absolutely correct. The law, all forms of the law whether Babylonian law, Roman civil law, English common law, or common law of any of the United States, every society from the beginning of civilization until 2001 recognized marriage as an institution which by its very definition required opposite sex parties.
Even if this were true – and there’s plenty of debate to be had – so what? The law is capable of being changed, and language can follow as it will.
I’ve actually had people tell me that Same Sex Marriage was bad, because it compels a change in the dictionary definition of the word. Well…tough noogies! The dictionary isn’t the source of legislation; the constitution is. The constitution has an “equal protection clause” which the Defense of Marriage Act violates.
We don’t worry about language in a lot of places in real life. A child delivered by Caesarian surgery has never actually been through “birth,” but “from his mother’s womb untimely ripp’d.” But Caesarian babies still have birthdays. It would be possible to give a hundred examples. Language is not the dictator over mankind.