But words have definitions. You can’t say that free speech is a fundamental right, then redefine “free speech” to mean something different, and argue that this different thing is now a fundamental right.
Yes, marriage, as it is traditionally understood, is a fundamental right. Just because in the last few years the idea that homosexuals should be allowed to marry doesn’t change centuries of tradition.
I don’t see any equal protection violation here. I can get married and a homosexual can get married. Equally. The only difference is that a homosexual wants to marry a person of his/her own sex, in violation of most state marriage laws.
This is something that has no support in the text of the constitution or its history.
From a non-lawyer’s (and non-American) perspective, this is how I always thought the constitution was supposed to work: Anything in the bill of rights implies a federal right - in other words, states are not allowed to pass laws that take away those particular rights. ALL other activities are subject to regulation by other, more local jurisdictions. So no state can pass a law forbidding peaceful assembly or the ownership of a gun. But they are free to pass all kinds of state laws, civic ordinances, zoning laws, whatever. So long as they don’t infringe any of the rights outlined in the constitution.
If the constitution is silent on marriage, that seems to me to mean that the federal government cannot pass any kind of marriage laws at all, but individual states are free to pass a law against certain marriages, so long as that law does not infringe on other rights in the constitution. And of course, the states have their own constitutionos they must abide by.
The problem with the 9th amendment, it seems to me, is that it has been so thoroughly abused by both sides, and the abuse has been allowed by the courts so many times, that it ceases to carry any weight. For example, I have a hard time seeing how the federal government is within its rights to pass federal affirmative action laws, or federal laws against drug use, without going through the constitutional amendment process.
According to the New York Times, “The court left open the possibility that the Legislature could use a term other than “marriage” to denote state-sanctioned unions, so long as that term was used across the board for opposite-sex and same-sex couples.” So presumably one option is for the state to recognize only “civil unions” as long as they are available to same-sex as well as opposite-sex couples. Churches could then marry people if they so choose. I would have no problem with this.
Hamlet, I’m not using “hyperinflated rhetoric”, I’m expressing a different judicial philosophy. I believe we are constrained to only interpret those words that are actually written in the constitution. You believe that there are additional words that are in the constitution, albeit unwritten, which exist by virtue of the 9th amendment. I see adding those rights as changing the constitution; you say they already exist. Neither side, to my mind, is speaking “nonsense”, we are just disagreeing, m’kay?
If there are additional rights, protected by the constitution, which are unwritten but exist, I ask how we know what they are? I believe you are saying that judges are “bound to use common law and common sense”. I am of the opinion that this creates a government subject to the whims of the judges, who are free to apply whatever logic they choose to use. I am also of the opinion that this is an undemocratic mechanism, as it removes from the purview of the people (acting through their elected politicians) the right to regulate society. And I, in my most humblest opinion, don’t think that the framers of the constitution intended a system which required a constitutional amendment to correct the particular common sense used anytime 5 Justices came to a consensus.
JTGain, are you being purposefully obtuse? You don’t see how, if you can legally marry a woman, another woman is being denied the equal protection of the law by not being able to marry a woman? Forget about whether you agree with this or not. Forget about whether you think this is just or not. You just can’t see how people aren’t being treated equally by the law when you can do something, but someone else can’t?
Of course. But we’ve already accepted that slander, fighting words, FIRE!, and child pornography, although speech, are not protected under the Constitution. Everything has to be interpreted.
We agree, marriage is a fundamental right. The reality of a civil marriage (what the government recognizes) is that it is only a licensing law, and, while it effects a vast numbers of different laws, the civil portion has nothing to do with the gender of the people involved. The government’s role in creating and regulating civil marriages also has nothing to do with the gender of the people involved. The reality is, from the government’s point of view, the gender of the people involved should have no bearing on the rules and laws. Thus, although traditionally government has recognized only marriage between a man and a woman, that recognition is not in the very least, necessary to the marriage.
The fact that the right to marry has only be afforded to heterosexual couples does not mean the right doesn’t exist for homosexuals.
A good analogy is the right to sexual intimacy. The same discussion comes up in the realm of Lawrence v. Texas. Whereas I think everybody in the world agrees that the government has no business regulating what happens in the bedroom between consenting adults, for decades that never extended to homosexuals. It was a convenient way for people to misdefine the right to sexual intimacy by recognizing the right for heterosexual couples, but not for homosexuals. This technique of defining a right only by those who have traditionally enjoyed it, should have no place in the law. Just as homosexuals have (and should have always had) the same right to sexual intimacy that heterosexuals enjoy; so should they have the right to marry that heterosexuals enjoy.
Just so you know, that argument fell out of favor in Loving, where the State asserted that blacks and whites both had the right to marry (as long as it was to the same race), so anti-miscegenation laws were constitutional. It’s not really a winner of an argument.
The recognition of the right to marry certainly has support in the history of the US. It’s simply recognizing that the right applies to ALL people, that changes.
I think the founders (as well as millions of Americans) would find that view to be anathema to the Constitution and the entire theory of government. The very idea that the government is free to regulate anything not listed in the Bill of Rights is precisely the reason for the 9th Amendment.
I do too. What you are saying, instead, is that we are constrained to ignore the 9th Amendment.
I understand we disagree. The problem is that I’m right and you’re wrong.
The problem I have is with your constant assertions that I believe there are “additional words” I’m writing into the Constitution or that, by recognizing rights the judiciary is “changing the Constitution” or “usurping the will of the people.” That kind of rhetoric (and it is just rhetoric), is standard fare, but it has no basis in the Constitution itself.
Bu they did. Again, you would have to completely ignore the 9th Amendment, and the clear intent of the founders, to come to the conclusion that there are no rights outside of those enumerated in the Constitution. With that recognition, the issue becomes who decides what rights are protected. You can insist that only the Legislature gets to define rights, but THAT reading of the Constitution isn’t borne out in the language of the Constitution either, and it flies in the face of judicial review. Certainly the Legislature can define rights, but they can’t infringe upon those of the people of the US.
You certainly have a point, there is a great deal of flexibility in defining rights. But that is true for both branches. And the founders didn’t want one branch, the Legislature, to be the sole purveyor of rights.
I might point out that Atomicktom and jtgain, holding as they do to a textualist reading of the U.S. Constitution, really have no right to express those views, as the freedoms guaranteed by that document are for U.S. citizens and/or nationals, whereas, since there is no explicit grant of power to acquire new territory in that Constitution, they must consider themselves to be loyal subjects of His Most Catholic Majesty Juan Carlos, King of Spain and of his other dominions, as residents of his Territory of the Floridas.
I don’t think this changes your point necessarily, but it’s a little different than that.
The US Constitution lays out the powers of the federal government, which are limited, and then the states get all the other governmental powers through the 10th amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
The Bill of Rights originally applied only to the federal government. Although most state constitutions had similar bills of rights, they could be interpreted differently than the federal rights. This changed at various points in the last century, as various amendments in the Bill of Rights were incorporated, through the 14th amendment, to apply to the states as well. (It’s notable that the 2nd amendment was never incorporated…)
This is why “equal protection” can get silly. As a person, I can marry a member of the opposite sex. That marriage law applies equally to me, you, and every other poster here, man or woman.
Now just because there are people who want to marry members of their own sex, that doesn’t mean that their equal protection under the law is being violated any more than a man predisposed to rape children is being denied his equal protection under the law.
You want to word it that as a man I can marry a woman, and that a woman can’t also marry a woman thereby denying her equal protection. Since we have a conflict of definitions here, we need to go back and look at what the drafters of the 14th amendment would have thought about this. To say that Charles Sumner and Ben Butler envisioned gay marriage when authoring the 14th amendment doesn’t even begin to pass the laugh test.
It may very well be that in the year 2008, same sex marriage SHOULD be legal. My contention is that such a change in societal views doesn’t change written words in our constitution…
I don’t read the 9th amendment the way you do. I don’t believe it confers constitutional rights to people. I believe it confers rights. The difference is the standard by which those rights can be regulated. All rights, after all, can be denied. Even the “inalienable” rights to life, liberty, and the pursuit of happiness are not unalienable. The government can still take them away. The question is how much those rights are protected from the government’s grasp.
It may help to remember the tenth amendment, too (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”). If the power is in the Constitution, it can be regulated by the Federal government. If not, in can be regulated by the States. If not, still (i.e. both are silent on the topic), its given to the people to regulate.
The Constitution helps serve this purpose, then, since it tells us what powers the Federal Constitution can yield, while the Bill of Rights balances that by constraining the exerice of those powers. If the Federal government exercises power, it better point to a part of the Constitution that will justify it. And if the Amendments say the government has to, or can’t do something, then it requires the closest scrutiny to uphold a law that infringes this requirement.
Inherent in this is lots of discretion. It’s the nature of written opinions that aren’t as uniform as mathematical formulas. But, I believe that the discretion shouldn’t go beyond the words actually written.
And I don’t believe the words written in the 9th Amendment (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”) do not mean, “anything not written down here is also protected like the things we did right.” I think, instead, it means “Just because there are rights written here doesn’t mean that other rights don’t exist.”
As explained by its writer, James Madison
Those rights, though, like all others, are not absolute. The government can still infringe them. But, when they are not written down, the government has greater latitude when it tries to infringe them. When we write down a right (via an Amendment) we are increasing the scrutiny, and narrowing the justification, for infringing on this right.
'Tis okay, though. I still agree that gays can’t be denied the right to marry. I just reach my conclusion differently than you.
:Shrug: Article 2, Section 2 says “[The President]He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur”. If you are talking about the Lousiana Purchase, I believe the Jefferson had the right to make a treaty, acquiring tons of land, provided the Senate concurred (I don’t know if that happened. If not, was there some reason he didn’t get approval from the Senate?).
See, I’m willing to concede the need for some interpretation. Just as I would include the word “He” in that clause to include Hillary Clinton (Go Barack!), I’m willing to interpret the word treaty.
See, this is the other end of the spectrum. I do believe in interpreting the words that are written in light of their contemporary definition, and I don’t limit it to what they meant at the time. To do so is, IMHO, too cumbersome a process to adapt to a constantly changing society. As I tried to explain in this post (on another thread), I believe it undermines the legitimacy of the court if they only believe, for example, that the arms in the 2nd Amendment are just “muskets and cannons”
You are talking about two different things. When the founders talked about “arms” they knew of only muskets and cannons. The definition of arms would still apply to today’s advanced arms.
It no more limits the 2nd amendment than it limits the 1st amendment to only applying to writing with quill pens or having the town crier announcing the news.
The constitution does have a process for change which does not involve simply ignoring precedent. Article V has a process. It’s difficult, but it’s there.
If the idea of something like marriage has changed, then this is best expressed through the will of the people in their state government. To have their state court say that this is in our founding document is ridiculous. If it was in there, where were the people in 1851 clamoring for gay marriage in California under their “basic rights”?
You are trying to say that the definition of arms has evolved from muskets to M-16s. It certainly has. No one will argue that.
You are also trying to equate that with your opinion that the definition of marriage has evolved from a purely heterosexual union to include homosexual ones. That hasn’t been established. It is the debate that is ongoing. Maybe it should and maybe it shouldn’t.
That certainly isn’t a basis for any type of basic right
Jtgain, please understand that I am specifically arguing that a right to marriage does not exist in the constitution. Instead, I am arguing that there is a right, found in Amendment 14, that says “No State shall make or enforce any law which shall…deny to any person within its jurisdiction the equal protection of the laws”
And I believe that restricting marriage, such that a man can’t marry a man, violates this right.
The issue of marriage is superfluous. The history of marriage is not relevant.
It is the right to equal protection that I’m advocating.
Even if you don’t believe the 9th Amendment “confers” rights to the people (which once again is not how rights were viewed by the founders), it, at the very least, recognizes that these rights exist. And these rights, besides just existing, could not be denied or disparaged by government. The fact that these rights, just like the rights actually enumerated, can be limited in no way, shape, or form, changes the fact that they exist and are protected from governmental intrusion.
And, again, when the words that are actually written recognize that there exist rights not enumerated that are subject to protection, the issue isn’t whether those rights exist, but rather how they are protected.
And, again, the 9th doesn’t just say that these rights exist. That was acknowledged already in the preamble and the DOI. The 9th Amendment also says those rights cannot be denied nor disparaged by the government. It seems that people who ignore the 9th Amendment have the biggest problem reading the clear language.
Of course.
Which, once again, flies right in the face of 9th Amendment. It specifically says that the enumeration of certain rights does not disparage the existance of others. Pretending that unenumerated rights are subject to “greater latitude” is doing the exact opposite of what the clear text says, and clear intent of the founders , of the 9th Amendment.
Which is fine. I’m just sick of people pretending that a true reading of the 9th Amendment means I’m ignoring the Constitution.
(My emphasis)
I think this is plainly not true. Every right can be limited in way, shape, or form. Free speech, for example, a very fundamental right, can be limited in time, place, or manner. You don’t have a free speech right to play death metal at high volume in a neighborhood at 3 am.
When we express a right, though, we make it harder to justify this infringment. But every right can be infringed.
And I do believe that the 9th amendment does confer rights to the people. I just don’t believe it confers constitutional rights. I’ve said this ad nauseum. I’ve also said that the difference is in the scrutiny by which we judge infringement.
I know you’ve said it ad nauseum, which has led me to repeat, ad nauseum, that your view completely ignores the clear language and intent of the 9th Amendment. One can only believe this idea that unenumerated rights are somehow not “constitutional rights” if you completely ignore the 9th Amendment.
You’re assigning a weight to the ninth amendment that simply does not exist, not for any practical purpose. Your logic, ISTM, could use the ninth to argue for virtually any right. The ninth is so shapeless an amendment as to be meaningless, for any practical purpose. That’s a fact, in that there are virtually no SCOTUS decisions that cite it (with a couple of exceptions, that reference it nebulously). You might find this thread illuminating (I did):
I believe Loving was a bad decision, that wrongly (from a constitutional perspective) overturned a horrible (from my own perspective) law. I don’t believe SCOTUS has the right to “recognize” fundamental rights that have no basis in the constitution’s actual words, though of course they often have.
I have no problem with SSM as law, but I see no constitutional basis for pushing it through. The 9th doesn’t do the trick at all, and the 14th fails from an EP perspective for the reasons jtgain mentions. So long as all men are barred from marrying men, and all women are barred from marrying women, no equal protection issues. Again, to be clear, I don’t like that states can restrict this. But the U.S. constitution doesn’t prevent them from doing so, ISTM.
This is why I love Jurisprudence. If we were all on the Supreme Court, and a law banning same-sex marriage was before us, we’d write separate opinions.
Hamlet, if I understand correctly, would say that there is a fundamental right to marriage, guaranteed by the 9th amendment, and that the ban infringes on that right. It is, therefore, unconstitutional.
JTGain would say that there is a fundamental right to marriage, but that marriage is historically between a man and a woman, and that the same sex marriage ban doesn’t prevent any man from marrying any woman, so it doesn’t infringe on the right. The law, then, is constitutional.
I would say that there is no fundamental right to marriage. However, the ban on same sex marriage violates the equal protection provision that does appear in the 14th amendment, and is therefore unconstitutional. I would have decided the Loving case the same way.
If these were the only three justices, JTGain’s opinion becomes the dissent, and the law is declared unconstitutional. It’s not clear whether Hamlet or I would be the majority, and who would be the concurrence. I guess that’s why there are 9 justices, and it would depend on which opinion the other justices would vote to join.
(If we add Stratocaster to the mix, it’s no longer clear that Hamlet and I are the majority; perhaps JTGain becomes the majority, and Strat writes his own, separate concurrence. Different opinions for everybody!).
You’re right, if I were added to the mix, I would agree with jtgain that there is no constitutional basis for striking down a law against SSM, but not necessarily for the reasons he cites. I would agree that a “fundamental right” has been established (wrongly or not, it has), but that right by definition applies to traditional definitions of marriage (I will reiterate at this point that I have no opposition myself to SSM!).
But that’s irrelevant in that the U.S. constitution does not otherwise protect a right to marriage at all. Ignoring for the moment the nebulous decisions that have effectively established law, I see no constitutional obstacle to a given state saying NO marriage is legal, period. (Such a law would last about 10 minutes, of course, but I mention this to illustrate my perspective.)
And that’s why there are an odd number of SCOTUS justices! These guys couldn’t agree on pizza toppings.
