Hold on, now. For every “right” you list that would be infringed by allowing people younger than 16 to drive, I can list a “right” that would be infringed by allowing two men to marry each other - and I’m in favor of same-sex marriage. Shall we try it, or would you rather retract this ridiculous claim?
Surely you know that the DoI is not the source of any law in the US. But aside from that, the problem with your analysis is the assumption that the state must sanction a union in order for the participants to fulfill their desire to be happy. Now, if the state were forbidding gays from living together, holding hands in public or otherwise carrying on a romantic relationship, there might be some validity to your argument.
This I would like to see! ElvisL1ves, what do you think? Oh, and can a couple be “Happy” if they know they have no right to see their spouse in the hospital, since they are not legally married, Mace?
Shodan, rather than go over your post piece by piece, I’ll simply point out that, given your view of Constitutional interpretation, there is no way in the world I could convince you there is a right to same sex marriage. It’s not in the text of the Constitution. You’re absolutely right. And with your myopic view of constitutional interpretation, there is nothing I could do to persuade you otherwise. I could argue that, by creating and enforcing civil marriage, the legislatures have created a right to marry, and enforcing that right in a discriminatory way violates equal protection. It’s certainly a persuasive argument, but, at this point, there is absolutely no reason to believe you would accept it.
You are an originalist. You are Bork. You have a very limited, and, in my view, very detrimental view of constitutional interpretation. Hell, from most of your posts, it appears you think that the Constitution doesn’t even need to be interpreted. If it ain’t in there, it ain’t a right. All I can say is that you are mistaken, both on what the framer’s intended, and in what is “good”. We could spend 19 pages, and they’ve been done before, explaining to you why your view is so destructive, but really, what is the point? You will not be persuaded. You will accept injustice in the name of process, and let the majority do as they please to the minority, without judicial intervention. All I can say is, you are wrong on policy grounds, on constitutional grounds, and wrong as a matter of the current state of the law.
What, in your view, would stop the legislature from enacting these laws without judicial review? There is no right in the Constitution to live together. There is no right in the Constitution to hold hands in public. There is no right in the Constitution to carry on romantic relations. If you accept Shodan’s view of constitutional interpretation, there is no right to intimacy, no right to privacy, no right to court paid attorneys, no right to marry, no right to not marry, no right to celibacy, no right to raise you own child. That’s one of the huge problems with his view of constitutional interpretation, whatever the majority says, happens, with no restraint from the judicial branch. The very flexiblility envisioned by the framers, as well as the idea of the judiciary being an actual check and balance on the legislature, would be non-existant. That’s not the Constitution that exists today, and certainly not the one I want to live under.
I don’t think the two are comparable, though – someone under 16 will eventually “grow out” of the situation, whereas someone who’s homosexual can’t change his/her sexual orientation so easily.
I can’t speak for Shodan’s view of the constitution, but I’d bet he’d be OK with the comparison to Bork…
The legislature did enact similar laws to what you listed above (anti-sodomy laws), and I think they were rightly struck down. The constitution isn’t about enumerating the rights of the people, but about placing limitations on the government. The government has no business telling adults what they do in private.
But civil marriage is not a right-- it’s a list of priviledges and obligations that the state places on the union of a man and a woman. There simply can be no doubt that all of our marriage laws, for the last 225 odd years, were put in place with the assumption that those laws would apply to the union of a man and a woman. I don’t accept the position that the judiciary should play “gotcha” with the legislature. “Hey, you didn’t explicitly say marriage was a man and a woman, so GOTCHA! we’re going to extend marriage to same sex couples.” That makes a mockery of the legislative process.
As for how the judiciary should interpret the constitution, I believe they should follow the text wherever it is clear. Where the text is not clear, they should try to understand the intent of the lawmakers. Where the intent is unclear, they should kick it back to the legislature in a manner I described above. If the legislatrure, or the people, desire to expand or clarify a particular piece of legislation beyond the original scope or intent of the authors, there is nothing preventing them from doing so.
I’m almost sure he would be. I’d hate to think I’d complimented him though… :smack:
You can’t have it both ways, though. You say the Court was correct in striking down the sodomy laws, but then, once paragraph later, you lay out a theory of constitutional interpretation that wouldn’t allow you to strike down sodomy laws. Using your theory, the text of the Constitution is pretty clear, there’s no enumerated right to sexual intimacy. Your next stem is to understand the intent of the lawmakers. Well the intent of the lawmakers is damn clear… homosexuals do not have the right to physical intimacy, in fact, not only do they not have that right, it is in fact a punishable crime. The intent of the legislature is damn clear. Now, if you look at the fact sodomy was widely condemned and illegal in a majority of jurisdictions that ratified the Constitution, the framer’s intent was not to protect homosexual intimacy. So either “intent” you try and determine still leaves homosexuals out of luck. Using your theory of Constitutional interpretation, there is no right to homosexual (or for that matter heterosexual) intimacy. You simply can’t have it both ways.
Once again, the judiciary did not enact laws that made same sex marriage legal. What they did was strike down laws that forbid homosexuals from marrying. It’s not a GOTCHA, it’s a “Don’t discriminate”. As an aside, I disagree that marriage is not a fundamental right. The Supreme Court has said, in Loving and Zablocki, that it is.
Suppose gays were allowed to marry, but only after a 5 year waiting period. Wouldn’t you say that’s still unfair discrimination, even though they’d grow out of their situation eventually?
Throwing some chum on the water: U.S. Judge Rejects Neb. Gay-Marriage Ban.
Discuss.
I’m serious - I’m not being sarcastic. I’m entranced by this thread.
Fascinating.
I haven’t read the opinion, but from the link, it sounds like the judge struck the ban on First Amendment grounds!
That’s a new one. Off the top of my head, I don’t recall any same-sex marriage case litigated on First Amendment grounds. And because the ban in Nebraska goes well beyond merely forbidding marriage - and because I don’t know exact details - I’d say it’s possible this decision has merit.
I’ll have to read the actual decision.
Very much so. 
You need to go farther. I have a limited view of the role of government in general. And I believe in a system of checks and balances, and I still don’t see how you will accept any check on the power of judges that cannot be used to impose something that you don’t want.
Well, did you have any cites that show that the writers of the Constitution believed that judges should make up new rights out of whole cloth and bypass the whole amendment process?
And, as before, I have not seen you address the destructive potential of empowering judges to rule by fiat, unconstrained by the actual text of the Constitution.
Utter horseshit. You are completely ignoring the whole intent of the Constitution, which, as I have stated repeatedly, consists of the attempt to limit the rights of government.
And, of course, if you accept your view of Constitutional interpretation, there are no rights unless a judge says there are. And no limits - none at all - on the power of judges to do just exactly what they want.
John Mace - wouldn’t you say that one of the powers reserved to the states and the people is the power to define new rights, and/or amend the Constitution?
Taber - if I understand you correctly, you are saying that the First Amendment applies to Internet message boards even though they didn’t exist at the time the Bill of Rights was ratified. Correct? My response would be that it would be fairly easy to show that the original intent of those who wrote the First Amendment was to protect - from government, mind you - most forms of communication, both oral and written. They did, after all, protect both “speech” and “the press”. The original intent, therefore, is clear.
Now, it remains for the proponents of SSM to show that the original intent of the equal protection clause (or due process, or free speech, or whatever clause you think applies) was to establish gay marriage. This is especially important because gay marriage seems to be fairly clearly against the will of the majority.
Yes, yes, I hear the immediate response that “the Constitution is there to protect the rights of minorities!!!” In part - yes. But first you have to establish that the Constitution does, and was intended to, establish gay marriage as a minority right. Which you do by quoting the text of the Constitution in which this is made clear, or the writings of those who established the Constitution in which they acknowledge gay marriage as a right.
If you cannot do that, you wind up where Hamlet seems to be - admitting that gay marriage is not in the Constitution, and that judges do not have the power to put things into the Constitution. In which case, gay marriage is not legitimate until the states or the people establish it, either thru Constitutional amendment or referendum or what have you.
Regards,
Shodan
Yes, by all means try it. Show us how ridiculous the claim is. Fight our ignorance. Please.
This should be very interesting.
This is kind of a silly arguement. I haven’t read the consitution in a while (I know. Shame on me and ship me to gitmo 
), but the equal protection clause also left out women and slaves iirc. The right to bear arms contains no mention of automatic weapons, etc. There are a lot of things not in the constitution.
Could I ask a favor - could you please either get a grip, or fuck completely off?
You begin by admitting that you are ignoring arguments, and then go on two sentences later to say that you have argued every point you saw. And that begging the question is guaranteed by the Ninth Amendment.
I can’t tell if this is an admission that you are simply stupid, dishonest, and uninterested in actual debate, or an out-and-out confession that you post after a manner that Dare Not Speak Its Name.
At any rate, arguing “I want gay marriage, and damn the consequences” is a very dangerous, not to say short-sighted, position. Because, as is clear, the people who are going to be working to fill positions on the Court in the near future do not find your indifference to the limits on the court’s attempts to impose the liberal cause du jour congenial.
Regards,
Shodan
PS - Scotty old bean - a paragraph break once in a while would make your drivel easier to read, if not understand. I’m just saying.
You are aware, no doubt, that the Constitution can be amended to outlaw slavery and give the vote to women, are you not?
Because you are quite correct, it was not the original intent of the framers of the Constitution to free the slaves or allow women to vote. But neither of these welcome changes came about because a judge said “slave” meant “free man”.
But again, you are correct. There are a lot of things not specifically mentioned in the Constitution. They are mentioned, however, indirectly in the Ninth Amendment.
Your point about automatic weapons is also a good one. There is clearly a need to interpret the Constitution. And therefore, a gray area. I doubt this can be avoided. But gray begins to verge on very dark and on into black when judges begin to “interpret” so as to “contradict” the clear sense of the text and/or the Founders. Wasn’t there a case where some judge said the interstate commerce clause meant that schools could ban weapons nearby or something similar? And some other clown said that global warming meant that some farmer’s field was going to be flooded, and therefore it was covered by the “navigable waterways” clause. Or something similar.
“Equal protection” as shorthand for “gay marriage” strikes me like that. If you can “interpret” the clause to say that, you can interpret it as saying literally anything. And therefore the power of judges becomes unlimited, and we have lost the rule of law.
Regards,
Shodan
Well, the power to appoint judges, the power to Amend the Constitution, the power to approve judges, the power to impeach, the power to set jurisdiction, and the power to establish inferior courts. Add to those, the judiciary’s lack of enforcement ability, their own interior checks, and the fact that a vast majority of judges have shown their own judicial restraint, and you have plenty of checks on the power of the judiciary.
hijack
I’ve always wondered why you seem to have a poor reputation on the board. I’ve tried continously, here and in other threads, to treat you and your ideas with respect and try to engage in honest debate. Now that I’ve actually had to discuss something head to head with you, I finally understand how incredibly difficult it is to deal with you. As I pointed out earlier, you have no qualms mistating the position of others, taking what I’ve said and rephrasing it with loaded, pejorative terms, and refusing to acknowledge anything that does not agree with you is debatable. Whereas discussion with Bricker and Dewey to a point, can be informative and interesting, discussion with you is tedious, annoying, and rage inducing. I’m begining to see that there is very little reason to continue to engage you.
hijack
The judiciary is not making up new rights our of whole cloth and they are not bypassing the amendment process. I would explain to you, once again, the concept of judicial review, it’s role as a check on the power of the legislature, the ability of the legislature to bypass that check with amendments, and the role of precedent. All these ideas work in the realm of same sex marriage law also. But it seems pointless. Especially since you refuse to even acknowledge the point I made and address it and would rather just put quote tags around it and pretend you’re addressing it by spewing more thoughtless rhetoric.
Hey, you did it again. I’ve never said, nor advocated that judges rule by fiat, unconstrained by the actual text of the Constitution. Do you not understand how incredibly annoying it is to have your arguments stripped of their logic, repackaged with idiotic rhetoric, and ignored in favor of using pet words? So stop it, OK?
Just as with anything, judges are bound by the text of the Constitution. What the grownups here are talking about is how to interpret that text. The Constitution does not say “interpret me narrowly and only with whatever we intended” or “interpret me broadly and try to do justice”.
Are you ever going to get around to addressing the argument I made? Just let me know. You can start by telling me how your interpretation of the Constitution would recognize those rights I listed. And how you got there. And whether you would agree with this statement: “due process prevents government action that offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental”. I eagerly await your reply. Or you ignoring of my points and instead restating them with over the top rhetoric. Either way.
Yawn, more of the same. The legislature is free to create, destroy, limit, and define rights. But they must do so WITHIN THE CONSTRAINTS OF THE CONSTITUTION. It’s not that difficult of a concept to grasp is it?
Still stacking the deck aren’t you. I guess that’s one way to win every argument, make sure that the opposition can’t challenge the rules that work in your favor. You must be killer at parties. No, proponent of SSM do not have to show the original intent of the equal protection clause was to establish gay marriage. They have to show that denying marriage to same sex couples is a violation of the Constitution. And they’ve done that.
Well, my original frustration is slowly slackening, so I can actually laugh at the repetitive nature of your posts.
Now you’ve gone from repetitive back to misrepresentation. Well done.
Well, I’ve briefly reviewed the opinion.
It finds Equal Proection AND First Amendment rights violated by Nebraska’s ban.
I express no opinion on the First Amendment issue yet.
But this is interesting… I’ll be very eager to see what the Eighth Circuit says.
Well, if you are suggesting that the legislature should simply remove the topic of gay marriage from the jurisdiction of the courts, that would be fine with me, and respectful of the Constitution. And I would be perfectly happy with the impeachment and removal from office of any judge who tried to impose a new right of gay marriage by fiat.
So characterizing anyone who refuses to support gay marriage is a bigot, and that is fair debate, but refusing to allow your political opponents to define a problem so that it cannot be resolved except on their terms is not?
:shrugs:
If you find it so trying to debate someone who disagrees with you, good luck finding a thread in GD or the Pit. You’re as bad (almost) as that Scott_plaid idiot. If you don’t want to debate, then don’t debate. Chiming back in periodically with “I could refute you, but I won’t bother because you’re such a meanie that you don’t accept my argument without question” is a waste of electrons.
I’ve already mentioned that. I guess that makes me a grown-up. Who’da thought?
The right to gay marriage? It doesn’t appear in the Constitution. I got there by reading the Constitution. If all this stuff:
is code-speak for gay marriage, the Constitution doesn’t address them because they aren’t there.
Sounds good to me. Are you asserting that “people” here means courts? Or are you going to produce the evidence that the conscience of the county is so shocked at the notion of denying gay marriage that they vote in its favor overwhelmingly? Or that gay marriage is so fundamental to our traditions that it has been well-established in the common law for the last century?
Not at all hard. Now apply the same concepts to the courts, and we are home free
Actually, no they haven’t, and there lies the problem.
Regards,
Shodan
When I say the Constitution isn’t about enumerating rights, I mean that (per the 9th amendment) rights don’t have to be listed in order to exist. But that isn’t really the main point. The main point is that the constution exists to define the scope of governmental powers. There is nothing in the constitution granting the state the right to regulate the sexual activities of adults. Civil marriage, OTOH, is by definition a state activity. If the stated doesn’t regulate it, it doesn’t exist.
I didn’t say “enact”, I said expand. Even if I accept the right to marriage, per the SC in Loving, it all depends on what the defintion of “marriage” is. What do you think the justices meant when they used that term? Did they mean “the union of a man and a woman” or "the union of any two people’ or “the union of any number of people”? Also, your assertion assumes that the SC, today, would recognize the right of same sex couples to marry. Do you really thing that is so? If not, what does the right to marriage mean?
Yes, but don’t you agree that “the states” includes the state judiciaries?